During the recent WLEX investigation of the Fayette County Public Schools Special Education Department the district credited Director Kathy Dykes for being forthright and honest; for admitting that she ditched one day [and then later amended her confession to one-half day] of a 2009 professional conference in Las Vegas. But her confession only came after WLEX was poised to expose the fact, which they did in a recent three-part series of stories titled: "
." Fayette County Schools Superintendent Tom Shelton diminished the severity of the offenses," but also said he did not want to "defend a
lapse in professional judgment demonstrated in these isolated incidents."
the professional integrity of the district by making the difficult choice, Dykes apparently chose to hold her breath, and cross her fingers, hoping that no one would further expose the shortcuts taken in her department. Unlike her Grand Canyon road trip, both of the other instances had potential repercussions for children
About four years ago, a family with two special needs children moved to Kentucky. The children had already been progressing under an IEP from their former California school district. But upon arrival in Lexington, the parents learned that the Fayette County school district wanted to discontinue some of the children's services. The parents invoked the federal IDEA "stay put" provision. The "stay put" provision exists to maintain stability and continuity for the children. Under 20 USC
1415(j) and 707 KAR 1:340 sec 12 (3), unless the local school district and parents agree, any student identified with a disability shall remain in his or her then-current educational placement.
But the district wanted to remove services. To resolve the matter, on June 15, 2010, the parents opted for a due process hearing under 707 KAR 1:340 sec 12. A Due Process Hearing is an adversarial administrative hearing used by KDE to resolve disputes in special education where a hearing officer (who is presumed to be impartial) hears matters of fact, and renders a decision. The dispute was styled
Agency Case 0910-[YY] (where XX is substituted for the child's initials, and YY for the case number). (Note: Although KSN&C is reporting this as though there was one case, there were actually two actions going on at the same time - one for each of two children.)
The parents claimed that the Fayette County Schools failed to provide their child with an IEP that included certain related services necessary for the child to receive a free and appropriate education as required under the law.
But on June 18, 2010, when Clinton "Dale" Kirk was named the Due Process Hearing Officer for the case, Dykes faced a moment of ethical conflict. She confided in Mike Muncy who served as a district special education administrator for elementary schools at the time.
"Kathy told me, she said, 'Well I don't know what I'm going to do. Dale Kirk is the hearing officer and I slept with him a few years ago,'" Muncy told KSN&C.
"She said, 'I don't know if I should let them know that or not. We're going to have a telephone conference, and I don't know if I should say that we need to get another hearing officer or not.' She said, 'I guess I'll just wait and see what Mr. Kirk says,'" Muncy said. "So they had their telephone conference. Ed Dove was their attorney. Bob Chenoweth was our attorney. The conference was over and she said, 'Well he never mentioned it, so I didn't bring it up.' And they started the hearing," Muncy said.
Kirk never mentioned it. Yet the rules of procedure in due process hearings specifically requires the parties to divulge any potential conflicts of interest during the initial telephone conference. According to Kirk's Order of Continuance, filed on August 17, 2010, "The purpose of the conference was for the hearing officer to divulge personal and professional information for the parties to determine if there was any reason Mr. Kirk should not hear the case."
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| Dykes and Kirk fail to divulge personal information |
Dykes sat silently. Kirk never said, 'Oh, by the way, I had a very close personal relationship with the district's lead official a while back.' Their silence denied the parents a right that is fundamental to the process. Their silence denied them due process.
The motivating concern for any judicial proceeding is that all parties have confidence in the fairness of the process. Kirk and Dykes hid knowledge they were compelled to divulge, and the cost was that it denied the parents the opportunity to make a judgment about the hearing officer's fitness to hear the particular case, and ultimately, it cost the parents a fair hearing - not to mention whatever legal bills the family had amassed.
Over 22 months, the hearing plodded along with a formal resolution session, and further discussions of possible resolutions, to the deposing of out-of-state witnesses, to the filing of documents, and conference calls to the hearing officer informing him of the "progress or, more often, the lack of substantial progress" being made. The parents complained that the district was dragging their feet, while running up legal bills. KSN&C has been told that the case, which is not over, has already generated thousands of pages of documentation. During this time Kirk issued numerous orders and continuances. Finally on Thursday, April 9, 2012, "several substantive decisions were made" during a conference call with the parties, and August 20th was set to begin the hearing.
The Disaffection and Intervention of Mike Muncy
Mike Muncy would later complain that there "were a lot of sexual innuendos going on
in our office" and KSN&C has heard a few recordings that illustrate the very casual conversational tone that was
generally accepted in Dykes' presence - and was even promoted by Dykes herself. The atmosphere in the special education department apparently became uncomfortable for some employees, other than Muncy, who began recording conversations. The samples KSN&C became privy to were mostly bawdy, sophomoric, exchanges one might expect from...well, a sophomore boy. Breasts as flotation devices; getting it up... Think Bevis and Butthead, in drag, planning a special ed meeting.
But some of the "jokes" were not simply unprofessional, but also had implications for more important matters. On one recording shared with KSN&C (6/18/10), Dykes can be heard relating a conversation she had had to a small group. "I said, well, I found out who the hearing officer is this time. He' said, 'Yeah? Who.' I said 'Dale Kirk.' And he said, 'I wondered about that.' I said at the head [of the table] is going to be Dale Kirk, and I'm going to have Ed [Dove] pressuring me. I mean, we're going to have to buy a very special outfit for them," Dykes told the group.
Muncy further illustrated saying, "She went [into her office] and made a phone call, and
came back out into our middle room where we were having lunch. She says, 'Well, I called the hearing officer [Dale Kirk]. I had a question, and...he didn't answer, so I left a message. And I don't know if I should have said this or not, but I gave him my number and said, Give me a call over the weekend - if you're up to it.' And she winked at me, and smiled. She said, 'I probably shouldn't have said that,' and everybody started laughing."
Some KSN&C readers have asked how Dykes "could have been so stupid" as to post her unprofessional conference behavior on Facebook. One might also wonder how she could have been so unprofessional as to hide her conflict of interest, and then attempt to exploit it during a due process hearing.
By this point, it was clear to Muncy, as it was to others, that some rather inappropriate activities were becoming commonplace in the FCPS Special Education Department. And some would suggest that, although it might have been professional suicide, Muncy should have reported his concerns immediately. But he didn't. Neither did any of the other administrators who were well aware of how business was being conducted. To no one's surprise, everybody went along with the boss.
But that soon changed for Muncy when he started suffering from diabetes. Flare ups caused him to make trips to the emergency room, and he began missing work. A once-trusted lieutenant, his treatment at the hands of Dykes changed 180 degrees, and along with it, so did his attitude toward Dykes.
Muncy told KSN&C that he started getting angry emails from Dykes saying, 'I don't know where you're at, but you better get in here.'
Even before it turned sour for Muncy, Dykes had admitted to routinely targeting Muncy. In a recorded faculty meeting (1/20/11) that sounds more psychological than professional, Dykes said, "A lot of things don't bother me. When I feel it here, and Mike feels the lashing - [laughter] I target him for some reason. I go after our token male. [laughter] It must go back to something with male bashing a few years ago. [laughter] I've gotten over it, but anyway. [laughter] He's a good sport, [laughter] but that's a big issue I know."
But on April, 12, 2012, three days after Kirk set the date for the hearing, "I filed a letter through [attorney] Brenda Allen's office to Dr. Shelton," Muncy said, "alleging everything I knew about the corruption, and things going on that were inappropriate...I did an open records request, made these allegations, and let them know that Kathy had slept with that hearing officer. So after that letter, [the superintendent] must have met with Miss Dykes and Bob Chenoweth the school's attorney. He called the family, or Ed Dove's office and said, 'Mr. Muncy's made an allegation that there was inappropriate activity with this guy, Do you want to start a new hearing? Or do you want to continue?' The [father] said, 'I absolutely want a new hearing'."
Recusal
On June 5th, 2012, a Motion to Recuse was issued in the case, with the petitioner charging that "newly discovered evidence" was convincing, and that it was in everyone's best interest that Hearing Office Clinton Dale Kirk recuse himself.
After two years of delays and continuances in a case (two cases, actually) which Kirk admitted had already taken an "extremely long period of time," they were about to start over because every decision Kirk had made was now called into question.
Was Dykes successful in selecting just the right outfit? Was Kirk up for a weekend chat? How were the parents supposed to continue the process in good faith, when Kirk and Dykes had undermined that possibility?
By June 28, 2012, the process began again with a phone conference among the parties including Mike Wilson, the new hearing officer. In his first order, Wilson specifically confirmed that there were no longer any conflicts of interest.
Did Dyke's behavior constitute a breech of ethics? Apparently, the superintendent didn't think so. If he had determined that Kathy Dykes' conduct was dishonest, or her silence amounted to a willful disregard for the welfare of
others (particularly the children whose Due Process hearings were set back), or that it constituted a neglect of her duty to report the conflict of interest, or if she violated any administrative regulations related to the children's Due
Process hearing - then Superintendent Tom Shelton would have been required under KRS 161.120 to send a letter of notification to the Educational Professional Standards Board. KSN&C has been unable to confirm that any letter was sent regarding this incident.
Is the superintendent prepared to defend yet another
lapse in Kathy Dykes' professional judgment? Or is it possible that the superintendent was unaware of some of the facts being revealed in our investigation? When KSN&C asked the superintendent to confirm that letters were sent, Shelton said, "these matters are still under investigation."
Kirk
One might certainly argue that an even more serious obligation to report the conflict of interest lies with Kirk, as the hearing officer. If administrative judges cannot be trusted to act ethically, the administrative justice process is completely undermined.
But Kirk was not a typical KDE employee. KDE Assistant General Counsel David Wickersham confirmed that "Mr.
Kirk was a Personal Service Contractor." As such he would not be fired for any bad acts, but his contract could be terminated, or he could be denied any further work - and the latter is apparently the course KDE chose.
A KSN&C open records request produced evidence that KDE found the conflict of interest to be of sufficient concern that the department took action against Kirk. A letter from Amy Peabody of KDE's Office of Guiding Support Services to Kirk, referenced a conversation where he was told that he no longer met the requirements for employment. Still, during the next contract cycle, Kirk applied for more work as a hearing officer. On August 28, 2012 Peabody wrote to Kirk saying that "it was determined that you had an existing conflict with this work" and that he was therefore "ineligible for selection." Peabody cited the requirement that a hearing officer "not have a personal or professional interest that conflicts with your objectivity in any hearings" and that Kirk did not meet this mandatory requirement, as she had previously discussed with him. KDE spokeswoman Nancy Rodriguez told KSN&C that Dale Kirk no longer serves as a hearing officer for KDE.
Along the way, the parents' complaints about their treatment at the hands of the district mounted. "Every
once in a while, Kathy Dykes pulls my son's aide away," the father told
KSN&C. And apparently there is a new procedure, at least at one
school, that forbids instructional aides from speaking to parents?! The
parents believe this procedure was invoked because the aides were
telling the parents whenever the children's IEP was not being followed.
After speaking to several parents of special needs students, it seems that the way the collective group of "parents" figure it - the district has boundless resources, including legal services on retainer, a big liability insurance policy, and some amount of sovereign immunity. If the district wanted to deny services to children (due to budget constraints, or other reasons), even if it was illegal, most parents would be hard pressed to do much about it. In cases where parents are pressing for services and no "stay put" provisions apply, the district could essentially run out the clock with delays if they wanted to.
Another issue?
Surprisingly, Muncy does not place all, or perhaps even most of the blame on Kathy Dykes. Muncy believes the problems actually began with the questionable hiring of the high school special education administrator, Rachel Baker. When former administrator Beverly Henderson went to KDE on a two-year MOA [Memorandum of Agreement], Baker was hired as an interim. "But when the two-years were up, they just kept Rachel without advertising the position, or interviewing any other applicants, and she was hired without the proper certification," Muncy and other former FCPS sources allege.
"Rachel started as an intern. The first year was real slow and smooth, but as time went on she became bolder and bolder, and just basically tried to run the department," Muncy said. Another source opined, "[Dykes] was a small town girl who came here with a big dream. She saw that
she was ill-equipped for the job, so she latched onto [stronger
individuals] to ride with them, and try to stay on the job."
Muncy [and two other FCPS Special Education Department employees who spoke to KSN&C on condition of anonymity] said there was an 18-month to two-year delay between the time Baker completed her course work [for a Director of Special Education certificate] and when she became certified [7/10/09]. But Dykes apparently wanted Baker in the position, and so she faced another decision that tested her ethics.
"[Baker] was having difficulty getting a transcript from the University of Kentucky. In the meantime, she was working in a job that required a certificate for Director of Special Ed, but she can't get a transcript, which means that she can't get a certificate," one source told KSN&C. "I said something to Kathy Dykes about that. How dare Rachel put the district in a position of working as a special ed administrator for high schools, without the certification to do the job?" Well, Miss Kathy went and told Rachel what I said, and that's when hell broke loose," the source said.
Muncy said she was "going to these ARC meetings with demanding parents,
and telling them flat-out, 'No' on stuff, making decisions...but not having the qualifications." What if someone complained? Dykes allegedly responded to the concerns saying, 'Well I thought about that. I guess I would just tell them that she had completed her coursework, and just didn't have her certificate.'
Suddenly Dykes began placing restrictions on Muncy regarding who he could speak with, or have lunch with, and under what conditions. He was told to distance himself from the individual who had questioned Baker's certification. Childish retaliations began to occur, like no more invitations to eat lunch together as they had done for years. "During happy-hour at Sonic, they'd go out and get a 'Freezie'...for everybody but us. And this happened almost every day," Muncy said. Think Bevis and Butthead, in drag, at Sonic.
Muncy said it didn't help that Rachel bragged about being recruited to go to Nashville with the Scholastic Rep, which Muncy considered a kickback for all of the business FCPS had just done with the company. "The conference was about RtI (Response to Intervention)," Muncy said. "If anybody should have been going, it should have been Diane Shuffet," who was in charge of that concern.
Post Script
KSN&C met with Kathy Dykes during the time of the WLEX investigative reporting, to review some evidence that Dykes had hoped would prove she only ditched the conference for half of the day, instead of the whole day. A binder with a set of notes from the Las Vegas conference was presented. Nice, but, suffice it to say the "evidence" was not conclusive of anything related to her attendance because there is no way to confirm when such notes were made.
But this grown up version of "skipping school" is a relatively minor offense. It is embarrassing that she posted her playtime on Facebook, and that it came to light while the superintendent was being entertained in Australia by the Gates Foundation. This will, no doubt, give rise to new inquiries from state auditors wanting to better understand the nature of funded travel and whether that can be considered a kickback. It may cause the board of education to begin adding up the number of days certain administrators are away from their posts. It might spawn significant headaches for the district. But blowing off some portion of a conference? Who hasn't done that? The last sessions of the last day of a conference are almost always poorly attended.
As a disciplinary matter, it seems the 'ethics' charges are far more damning. At least, they ought to be, because they are about services to kids. These are the moments when a district demonstrates it's commitments to children, or to adults. The public can tell by observing who is protected in the process?
During our meeting, KSN&C invited Dykes to comment for the record. She declined. After a few minutes, Dykes was called out of the office, and when she returned she informed KSN&C that she had been directed not to make any comments at all, and that if we had questions they should be directed to the superintendent.
KSN&C first began looking into issues related to the FCPS Special Education Department about ten weeks ago after being contacted by Mr. Muncy and some parents. In preparing this story KSN&C spoke to, or otherwise communicated with, about a dozen parents of special needs children, along with a handful of former and current FCPS special education department administrators and staff. Due process hearing documents have been examined and in some cases open records requests have been made. We communicated with Leigh Searcy, compared notes, and followed the WLEX reporting.
And, of course, Mike Muncy decided to go "on the record" and we interviewed him and reviewed a number of documents, recordings, and even a funny photo of one special ed department employee asleep at his desk. (We didn't run it because it has nothing to do with this story.)
Some will dismiss Muncy as being disgruntled. So be it. He was allowed to sit at the cool kids table as long as he went along with the boss and took her jabs. But when that changed, and the jabs were no longer in jest, Muncy no longer felt obliged to take Dykes' petty abuse and keep her secrets at the same time. So he spilled the beans. If that's all it was, I might be inclined to dismiss him too. But Muncy came with documents. That's why WLEX believed him. I would have been inclined to believe him anyway, having known him to be reliable from my time in FCPS. But it was the corroborating documentation that made this story possible.
I was in attendance during the last FCPS Sp Ed Advisory Committee meeting, which, despite the fact that Dr Shelton's recent letters about the WLEX investigation of Dykes were on the agenda, no one offered a word, or asked a single question about the issue. Of course, Ms. Dykes, who ran the meeting, only gave folks about 3 seconds to respond before moving on to the next item. But I got the sense that everyone in the room, parents and administrators alike, we're relieved that no one said anything. They quickly resumed their pleasantries. If there is to be public accountability for the misdeeds of FCPS special education administrators, it will come from somewhere else.
If this is how this story ends, it will be a shame. If parents remain neutered, passive recipients of whatever help the district deins to provide their children; if the superintendent finds no fault in the behavior documented herein; if the servant leadership vision he is quick to espouse is in fact only a slogan; then it will be a shame for Fayette County special needs children and the district at large.
When Fayette County Special Education Director Kathy Dykes has faced
decisions that test her professional ethics, she seems to consistently fall short of the ethical standard set for teachers and other educational
professionals certified in the state of Kentucky. If the district fails to provide a strong response to these short-comings it will set a new, and lower, standard for leadership behavior in the entire district.
Especially now that Dr. Karen Frohoff has rejoined the district, it is abundantly clear that the wrong person is in charge.
