Saturday, July 13, 2013

Parents Move to Strike Dykes’ Testimony In Due Process Hearings

FCPS Defends Alleged Misconduct

Says, past personal relationship no different 
than being a past board member

Two Kentucky School News & Commentary stories are central to a claim made by the parents of two special needs students that the testimony of Fayette County Special Education Director Kathy Dykes was potentially biased and should be stricken in their children’s cases. The district’s response acknowledged that “some manner of personal relationship” with KDE Hearing Officer Clinton Dale Kirk had occurred and Dykes now refines her comment of “a few years ago” to “more than a decade and a half  prior to” the start of the hearing.

In a “Motion to Strike” filed last week with (new) Hearing Officer Mike Wilson, in one of two 2009-10 cases, the parents claim that “serious charges have been made” that Kathy Dykes, a key witness, and KDE Hearing Officer Clinton Dale Kirk “knew at the beginning of this Due Process hearing…that they had a serious conflict of interest and they both knowingly and willfully failed to disclose the conflict to the Petitioner.”

They acted as if it was not a conflict. The parents were given no opportunity to offer an opinion as to whether or not they agreed.

In his “Response to Petitioner’s Motion to Strike Testimony of Respondent’s (school district) Witness, Kathy Dykes,” FCPS attorney Robert Chenoweth claims that “the Petitioner’s motion is supported solely by information publicized by an online web-log (blog) on May 29, 2013.” 

While we appreciate the shout-out regarding our “mere media report[s],” we fear the blog is getting too much credit. 

The Petitioners motion is also supported by their “Motion to Recuse” Kirk which was written by the parent’s attorney Ed Dove, and was upheld. It is notable that the district apparently did not object to the motion to recuse Kirk. Kirk was replaced - and ultimately the Kentucky Department of Education denied him further assignments, for cause. The Petitioners claim is also supported by discoverable communications from KDE’s Assistant General Counsel Amy Peabody to Kirk. It is clear that KDE perceived the conflict of interest to be a problem. Kirk can no longer serve as a hearing officer.

The Petitioners also cite KSN&C’s interview with former FCPS special education administrator  - turned whistleblower Mike Muncy, and entered into evidence a copy of the letter from attorney Brenda Allen to FCPS Superintendent Tom Shelton. But Muncy has never been deposed in the matter and some information KSN&C has received is not in evidence in the case.

There is also a small factual error in the district’s claim; that being that the Petitioner’s actually referred to two KSN&C stories: this and this.

As a reminder to KSN&C readers, I am not an attorney, and therefore my legal speculations should be judged in that light. But as a student of school law and school leadership, I have taken the district’s response to the parent’s request to zap Kathy Dyke’s testimony to do a little thought exercise called…

Point - Counterpoint

The school district argues...
  • that “news reports are mere hearsay” and therefore inadmissible.

On the other hand...

  • Every day in America, news reports provide information that gets into the courts. However, we offer no argument regarding the admissibility of hearsay evidence. All pertinent evidence needs to be checked out and admitted according to appropriate legal procedures.
The school district argues...
  • that even if the allegations…are accepted as fully accurate, the Petitioner cites no authority for the striking of a witness’s testimony in toto based on alleged misconduct by that witness prior to the hearing. (emphasis in original)

On the other hand...
  • We have never argued that Kathy Dyke’s relationship with Dale Kirk constituted “misconduct” in any legal sense. While a couple of Kirk’s ex-wives might disagree, the only misconduct alleged by KSN&C happened during the hearing - at the moment Kirk and Dykes made the joint decision to hide their affair rather than divulge it in accordance with required KDE procedures governing hearing officers and other parties to the case.
The school district argues... 

  • that the Petitioner admits knowledge of the “relationship” on June 5, 2012 but the hearing took place over 6-days spanning November 2012 to May 2013. Dykes was called by the Petitioner to testify once in November, and once by the Respondent in May. Neither time was Dykes questioned by the Petitioner about her credibility or any bias in the case. Any legal basis for excluding Dykes’ testimony should have taken place then, rather than by a motion now, and was waived when she was called as a witness.
  • The district adds in a footnote: “The Respondent does not deny the existence of some manner of personal relationship between Kirk and Dykes more than a decade and a half prior to the hearing request in this matter, no details concerning that relationship are found in the record of this matter.”

On the other hand...

  • It was the affirmative actions of Dykes and Kirk that prevented the existence of their relationship from being included in the record. 

The school district argues...
  • That the Petitioner only cites 34 C.F.R. §300.511(c)(1)(i)(B), which says a hearing officer must not be “[a] person having a personal or professional interest that conflicts with the person’s objectivity in the hearing.” There is no record evidence that Kirk had any personal interest at the time of the hearing, that any prior relationship was ongoing, or that they intended to renew their relationship.
  • Under KRS 13B.040 (2)(b), allegations of “Dykes and Kirk’s ex parte communications” are unsupported by record evidence.
  • “Certainly the mere existence of a prior, concluded personal relationship does not equate to ‘[h]aving a personal bias toward any party to a proceeding which would cause a prejudgment on the outcome of the proceeding’, citing Doyle v Arlington County School Board(953 F. 2d 100; 72 Ed. Law Rep. 44). Thus it is not at all clear that either Kirk or Dykes was required by federal regulation or State law to disclose the existence of a prior, concluded personal relationship or that Kirk was required by federal regulation or State law to recuse himself from the proceeding. The district suggests that Kirk’s behavior was no different than if he had been a former board of education member, where the Doyle case indicates that being a former member of the board does not, in and of itself, bar a person from serving as a district judge.

On the other hand...
  • Kirk should have divulged the information as required, and declared that it would have no bearing on his objectivity. In that way, whatever issues or evidence was needed could be dealt with, and due process rights of the parents would have been honored. Because he and Dykes hid the relationship, there was no record evidence. Muncy’s testimony and evidence would show that, at a minimum, some level of flirtation still existed. Chenoweth uses the lack of evidence to argue that Kirk didn’t have to divulge the information. Besides there is evidence available. The hearing officer should take judicial notice that KDE determined that there was a conflict, and removed Kirk for cause.
  • In addition, the school district is leaving out one important aspect of the Doyle case. Showing that the conflict ended prior to the start of the dispute, was only one part of the court’s reasoning. The Doyle court added that it was “not…shown that [the judge] knew anything about the facts or people involved.” In Dale Kirk’s case, he knew one of the people in the dispute intimately. That is just not the same kind of knowledge one typically gains through service on a school board.
o   Strictly speaking, it does not seem like the Doyle case is on point. But if it is, the school board’s attorney ought to be under some obligation to cite the complete ruling and all of its elements to the hearing officer.

The school district argues... 

  • that the order reassigning Kirk was not admitted into evidence and made no statement of legal basis for the determination.

On the other hand...

  • Kirk was not an “employee” and it would have been very unusual indeed for KDE to unnecessarily list causes when the simplest path to the necessary end was simply to not renew his contract as an independent contractor. But when pressed, by Kirk, KDE did indicate that his non-renewal was related to his conflict of interest. Admit KDE’s letter to Kirk into evidence.
The school district argues... 

  • that there is an absence of any evidence of how the Petitioner has been prejudiced, and which of Kirk’s decisions were improper. “Even if it is true that Kirk rendered some pre-hearing decisions to the prejudice of the Petitioner, it remains true that Kirk had been replaced by the time sworn testimony was given…”

On the other hand...

  • The procedures requiring judges and hearing officers to divulge whatever conflicts exist to assure that citizens can have faith in the judicial process. Judicial officials handle this routinely.
  • For example, at the circuit court level in the Council for Better Education’s landmark case against the state, (Rose v Council for Better Education, 1989) Franklin County Circuit Court Judge Ray Corns was tapped to hear the case. Years earlier, Corns had been an attorney for KDE, and had even written a textbook with the council’s key witness on school finance. But as required, and even though the conflict no longer existed, he divulged the information to the parties in the case and offered to recuse himself should any party lack faith in his ability to hear the case impartially and act in an above board manner. Perhaps because he acted in an above board manner, there were no objections. This is how it’s done. But Kirk and Dykes did not act in an above board manner and it gave rise to the parents lose of all faith in the process.
o   FCPS Superintendent Tom Shelton is (or was) the President of the Council for Better Education.

The district concludes that “the Petitioner has failed to provide sufficient reason why testimony of Dykes should be stricken from the record of this matter in light of his failure to ask any questions of her during the hearing which would have revealed bias or misconduct by Dykes.”

It seems to me that each parent of a child with special needs has the right under 34 CFR 300.511 (c)(1)(i)(B) to an impartial due process hearing. The Kentucky Department of Education instructed that “both parties will be asked to individually determine if there is any conflict of interest with the particular hearing officer. This establishes that Kathy Dykes had the same obligation as did the hearing officer. When Dykes and Kirk hid their prior intimate relationship (they did not simply serve on a board together) the parents of two special needs children were denied their due process rights. The school district correctly informed the parent’s attorney of the allegations, and apparently did not object to the petitioner’s motion to recuse. Kirk was subsequently removed by KDE and denied further contracts. It was not the personal relationship that constituted misconduct. Neither Kirk nor Dykes were sanctioned by KDE for that. It was their failure to divulge the information that was the “misconduct,” and that occurred at the beginning of the case.


Anonymous said...

There is enough information here to bring down a superintendent as well as Ms. Dykes. I cannot believe Jim Warren still refuses to publish the facts regarding this case.

Richard, I believe Mr. Warren is a good man, overworked, but the Herald Leader has a responsibility to inform, but yet it is focusing strictly on DUIs received by teachers and avoiding the abuse of power at Central Office.

Wonder if the Courier-Journal will pick this up? Wonder if we should let them know what is going on.

Richard Day said...

July 14, 2013 at 11:10 AM

Bring down a superintendent?

Whoa, simmer down.

This is not even close to affecting Shelton's status, unless you can point to three board of education members who think it does, and are willing to vote that way. And, I can't think of one.

This is essentially the same board that went to the Supreme Court with Hurley-Richards, right?

Plus, Shelton didn't do anything wrong.

I may believe that he should have disciplined Dykes more harshly than it appears he did (no dismissal, no demotion and apparently no suspension) but that's only one in a thousand issues the superintendent and board deal with routinely.

And for the record, I haven't argued against Dykes to get at Shelton. I have argued against Dykes because I believe she messed up, and put herself before the children she was hired to serve. A stronger response from Shelton would, in my opinion, enhance the moral authority of his servant leadership rhetoric (which I believe he believes) and ultimately make the school district a better place for children by putting all administrators on notice that his ethics are unassailable. As it is, there is lots of room to question what Shelton really believes when it comes to his expectations for his administration.

I hope Shelton has a successful tenure in Fayette County and I believe our superintendents need to be supported - but they also need to be challenged to do better.

There was an FCPS Superintendent brought down by failing to respond appropriately to a prevailing community concern - Robin Fankhauser in 2001. That year Fankhauser demoted two black school administrators (one of whom was terrible and went on to lead a persistently lousy school in Louisville for a decade or so) and laid off 310 workers, 19% of whom were African American, prompting cries of racism. Spurred on by then US Representative Ernie Fletcher, Urban League President P G Peeples, Rev Bob Brown and other civil rights activists rallied on the school board steps under the banner of “No Confidence. No Trust.” The press covered it big time.

Under pressure, Fankhauser took some very bad advice and responded to her board's questions with an accusatory tone for not backing her up. Oops. She lost Board Chair Harvie Wilkinson's support that day, and had to go find a new career.

Bring down a Superintendent?

Show me the protest. Show me the uproar. Show me the press coverage.

Until somebody goes on the record and finds a way to tell a convincing story about problems in the special education department that resonates with the public and brings an outcry from a bunch of people - so that the press will pick up the story - the superintendent and the board of education don't have to do a thing.

But I believe you have accurately identified the real problem with reporting in Lexington. I am very concerned about what news corporations have done to newsrooms and I believe there are qualitative deficiencies in today's coverage that are leaving the community in the dark on too many topics. McClatchy is still insisting that H-L produce a return somewhere between 15-20%. Apparently their shareholders care less about quality coverage than they do lining their own pockets.

...but it's private enterprise, so we're all supposed to be OK with it.

Anonymous said...

Two other superintendents have gone down recently, Hargis and Turner. But they committed serious crimes. Special Ed is no big deal and won't effect Shelton. Neither will the Winn Dixie debacle because it was exposed before it happened.

Anonymous said...

Dear Dr. Day,

Unless I am mistaken, another superintendent was brought down for failing to report sensitive matters to the Board of Education. I was told, on reasonably good authority, that had Peter Flynn not left for Lockport, Illinois, he would have had his contact not renewed for failure to divulge to the Board that Melinda Lewis Cobb had brought a gun to the campus of Leestown Middle School while serving in her role as principal.

Second, are you saying that the current Board of Education was responsible for appealing a lower court decision on Rosalind Hurley Richards? This was a costly proposition, I'm assuming. I am sure they were encouraged to this by Shelton, but we will not know for sure because this was handled in closed session, correct?

As for Robin Fankhauser, I view her as the sad victim of a lynch mob. She was a good person and an easy target, sadly. Elements of public went after her the way did Elaine Farris in Winchester. In both cases, race played an undocumented role. Fankhauser's demotions were warranted, in my view. Jerome Johnson did not have a good record in the school district, and the Covington demotion was probably the result of some inappropriate emails he sent out that reached far and wide. I also believe Fankauser was responsible for demoting Andy Biggers at Tates Creek Middle. I think these demotions are a matter of public record, so I don't see a problem using names, but if you must expunge them, feel free to do so.

I think our District in in a sorrier condition than you may view it, but we'll see if the parents' organization is able to flex any muscle and run their own candidates for school board.

Thanks for allowing readers to use this forum.

Anonymous said...

It seems to me that the process of a hearing is simply a walk-through of a procedure with a guaranteed outcome. It appears to be a "a feel good" maneuver for the school district.

Special Education is federally and state funded. Therefore it brings money into the school district. How can anyone not realize the importance of educating these special needs children? Their needs if not addressed at an early age will have an impact on the rest of their lives.

News coverage is very important for parents to learn about what is happening in our school districts. Exposing tax dollar waste from the likes of people such as Ms. Dykes was great.

Richard Day said...

July 15, 2013 at 2:20 PM: Yeah, I was thinking of FCPS. Turner and Hargis: Fredricka Hargis? If I'm not mistaken both were felons.

So far, Winn Dixie is a swing and a miss. But maybe it's not over. Honestly, I'm not up-to-speed on the STEAM Academy.

July 15, 2013 at 4:01 PM: I never had credible information on Flynn's departure and for some reason never sought it. I can't argue with your information. You may be right.

I am suggesting that the board of education is responsible, along with Stu Silberman, of course, for OKing the string of appeals in the Hurley-Richards case - and for the associated costs. Shelton's name is on the Supreme Court decision but I'm pretty sure he inherited the on-going case upon arrival. This was Stu's baby and it was his judgment that was being reviewed by the courts.

I don't know about the lynch mob analogy, but her ouster was the partial result of civil rights activism. She was thrown out because of how she handled the issues, but I don't believe the African American community ever embraced her, or saw her as someone who was going to lead on the issues that were important to them.

The superintendency is something of a snake pit on a normal day. It's a public sector job and must be responsive to trending pressures. Even then, the superintendent can't always get out of the way. Some folks go after the person, rather than the issues.

I've been away from the internal life of FCPS long enough that one can reasonably question my perspective on almost anything. I don't live the life any more, and my sources are second-hand, therefore everything gets filtered.

You have identified the correct point of attack for disgruntled parents - if there is to be an attack. It is the board that must be responsive to the voters, or the voters will go find themselves someone else to represent them. But that takes organization and political will.

July 15, 2013 at 5:18 PM: I don't know if anyone has ever studied the outcomes from Due Process Hearings - like, who win the most. It's an interesting question.

And I agree about the importance of the press to a democracy. And I'm worried about it.

Thanks for the comments y'all.

Richard Day said...

Just to fill in some gaps...

Former Breathitt County superintendent Arch Turner pleaded guilty in federal court to vote-buying conspiracy. In was well-reported locally.

Much less known...

The Crittenden County Board of Education fired Superintendent Fredericka Hargis in 2004 on a 4 to 1 vote, on charges of conduct unbecoming a superintendent and insubordination. Hargis had been charged with 1st degree wanton endangerment after she ran over the foot of a woman she was arguing with in her car. She later plead guilty to the lesser charge of wanton endangerment 2nd, a class D felony. EPSB investigated and suspended her license.

In the stranger-than-fiction department: An anonymous source who was in a very good position to know, has informed KSN&C that Hargis had a "personal relationship" with another west Kentucky superintendent around that time. Anybody wanna guess who that was?

Anonymous said...

Parents of FCPS school children, unite!

You have nothing to lose but your chains.

Field your own candidate for School Board.

Your time is here.

Sadly, no one at Central Office is listening.

Anonymous said...

The website for the parents group is no longer operating. Did they disband?

Anonymous said...

Do you honestly think the two school board members up in 2014 will have serious opposition? Amanda Ferguson knows her district very well, seems to have a strong moral compass as evidenced by the Brenda Allen termination mess and beat back a significant challenge in 2010 where she was well outspent. Doug Barnett appears to be the only board member to actually care about the shape special education is in. He also spoke recently spoke out against the district's nursing cutbacks and seems approachable to staff and parents. Barnett has a very tough district, though, and he may be looking at other offices such as state representative or a judge? I think it would be shameful if we lost either of them.

Also, the three that were up in 2012 may have been more vulernable than the two members that are up in 2014, but all were unopposed in 2012. There is one in that group that I think is a lot of the problem and really needs to go (and it isn't the chairman!)

I don't see much happening on that front.

Anonymous said...

I think the Board needs to clean house. Since Tom Shelton does not want to terminate those who should be held to a higher standard --namely, Central Office Personnel Director Melodee Parker and Kathy Dykes, the Board must find someone who is willing to do that.

What has Tom Shelton really done for our school district? He appealed the decision of the lower court in the case of Rosalind Hurley Richards and he allows Cathy Dykes to remain in a position of authority. Strong superintendent? Reformer? No, he is carrying on the legacy of Stu Silberman.

Anonymous said...

I realize that the size of this system creates a larger potential for possible litigation, parental conflict, etc. But it seems like they spend a lot of time playing defense instead of simply getting out ahead of the issue, dealing with it and putting it to rest before it festers and get larger than it has to be.

Anonymous said...

There is still a case of Rosalind Hurley-Richards vs Terry Holliday i Fayette County. Case # 09-CI-05311. My question is who is defending Terry Holliday? This case is registered under Mr. Chenoweth. Surely now he is not defending the Department of Education too. That seems like it would be a conflict of interest. If someone knows anything about this case then I would love to know. How corrupt is our Kentucky Department of Education and Fayette County School System?

I can't imagine that he would be defending Hurley-Richards after just going against her in another case. Mr. Day can you found out any details for us?