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Some More *Clarity* on BESE’s “Special Counsel,” Contract Limitations, and PARCC

July 3, 2014

July 03, 2014, has been quite the day for uplifting information in the Roemer/White vs. Jindal battle over Louisiana public education. In this post, I elaborate on three topics: 1) Roemer’s, White’s, and the BESE majority’s attempts to “retain special counsel” in order to sue the governor; 2) further limits placed upon LDOE and BESE regarding contracts, and 3) an update on PARCC.

To give readers a sense of how one will feel after reading this post, let me say that none of this is news that will make BESE President Chas Roemer or Louisiana State Superintendent John White light of heart.

Stand for Children might want to sit down, as well.

That “Special Counsel” Situation

Here in Louisiana, we have a situation in which the state board of education (BESE) has voted to “retain special counsel” so that it and the state superintendent, John White, might sue the governor, Bobby Jindal, over his actions initiated on June, 18, 2014, decision to extract Louisiana public education from both the Common Core State Standards (CCSS) and the associated Partnership for Assessment of Readiness for College and Careers (PARCC) assessments.

BESE President Chas Roemer appears to be pretty puffed up about how Jindal’s June 18,2014, executive order– not the least of which involved freezing BESE money for its current “arrangement” for PARCC tests–“violates” BESE’s and White’s “rights.”

BESE is a state agency and is part of the executive branch. As such, in order for BESE to retain special counsel, it must at least secure the approval of the attorney general. The question becomes whether BESE needs approval of the governor, as well.

The Louisiana Code has two statutes concerning state agency retention of special counsel. Both statutes are excused from the regular contract procurement process as per the Louisiana Procurement Code. (See this post for more details.) One statute, RS 42:263, requires only attorney general approval:

§263.  Resolution requesting special counsel

A.  No parish governing authority, levee board except as provided in Subsection B hereof, parish school board, city school board, or other local or state board shall retain or employ any special attorney or counsel to represent it in any special matter or pay any compensation for any legal services whatever unless a real necessity exists, made to appear by a resolution thereof stating fully the reasons for the action and the compensation to be paid.  The resolution then shall be subject to the approval of the attorney general and, if approved by him, shall be spread upon the minutes of the body and published in the official journal of the parish.

The other, RS 42:262, requires both attorney general and governor approval:

§262.  Special attorneys

In the event it should be necessary to protect the public interest, for any state board or commission to retain or employ any special attorney or counsel to represent it in any special matter for which services any compensation is to be paid by it, the board or commission may retain or employ such special attorney or counsel solely on written approval of the governor and the Attorney General and pay only such compensation as the governor and the Attorney General may designate in the written approval.  The approval shall be given in their discretion upon the application of the board or commission by a resolution thereof setting forth fully the reasons for the proposed retention or employment of the special attorney or counsel and the amount of the proposed compensation.

The governor and Attorney General shall not ratify or approve any action of a board in employing any special attorney or counsel or paying any compensation for special service rendered, unless all the formalities as provided by this Part as to resolutions and the like, have been complied with.

That said, you had better believe that a Louisiana state agency seeking to sue a Louisiana governor is going to be a chess game.

It appears that the attorney general’s office has decided upon RS 42:262. As Melinda Deslatte of the Associated Press reports:

A spokeswoman for the attorney general’s office, Laura Gerdes Colligan, said Wednesday the provision means BESE’s contract, if approved by the attorney general, then would have to go to the Jindal administration for review.

So, the attorney general and governor both agree that the governor is to have a say in whether BESE and White are allowed to retain special counsel in order to sue the governor.

Now, I’m sure that White, Roemer, and the lawyers that they are not yet allowed to retain are eyeballing RS 42:263– the statute that omits the governor from the process of BESE’s and White’s retaining special counsel.

Time to bring this beauty home:

In order for White and Roemer to contest the application of one statute over the other, they would have to sue for the right to retain an attorney via the sole permission of the attorney general— who is already obviously not on their side in his inclusion of the governor in the BESE-and-White-sues-Jindal process.

Roemer and White would have to sue for the right to be granted the right to sue under a specific statute.

There is no provision for a state agency to retain special counsel in order to sue for the right to retain special counsel. (You read it right.)

In short, the Roemer-White corner gets smaller by the day.

Let’s shave off a little more of their space, shall we?

OCR Cuts LDOE and BESE “Allowances”

It seems that on July 02, 2014, the day after the let’s-sue-the-governor-and ignore-guiding-the-districts BESE meeting, Office of Contractual Review (OCR) Director Pamela Barfay Rice informed both White and Roemer that state finance officials must approve any contracts over $2,000. In other words, the audit of LDOE contracts has been expanded into real time and now includes BESE.

Both LDOE and BESE have been put on serious contract approval “probation,” so to speak.

Here’s yet a third shaving off of Roemer-White “corner space”:

White Will (Sad Face) Miss Making the PARCC Down Payment

As of July 02, 2014, the New Mexico courts are are allowing Pearson to continue its plans to develop PARCC. Retired teacher and activist Lee Barrios delved into the PARCC contract and came up with this worthy tidbit, which she sent to me in an email:

Here is the KICKER and the reason John White is so desperate to get this done NOW!  The commitment has to be made this month because the first [PARCC] payment of 15% is due 7/30/14.  The payment schedule is included in this contract. [Emphasis added.]

White was planning on a PARCC down payment in a few weeks.

That won’t be happening.

Here’s another observation from Lee’s email:

Paper tests and tests hand scored are additional costs.  Training workshops are additional costs.  Storage/accessibility of tests beyond 2 years is additional cost.  The price for various services will increase (prices are indicated) EVERY year. 

Pearson is into CCSS for the money, and PARCC will certainly turn profits for Pearson. As per admissions in its February 2014 earnings call with its market analysts, the Pearson plan is to “embed” itself in the American education system and make itself “indispensable.”

Set up a school system for one product, then hook them in via additional products, services , or updates at “additional cost.”

Roemer and White want to sue in order to make Louisiana public education into a “Pearson junkie.”

For now, that does not appear likely to happen. Any which way that these two turn, they are only seeing Jindal.

And Jindal has made it clear that he wants Louisiana out of both CCSS and PARCC.

What Do We Know?

In sum, if BESE and White disagree with both the attorney general and governor as having to approve their plans to sue the governor, there is nothing they can do about it but pout in the media.  As for LDOE and BESE contract spending, having to get anything above $2,000 approved is a very short leash and amounts to a “real time” audit. Finally, according to the PARCC contract, July 30, 2014, is the date that the PARCC 2014-15 assessment ship sets sail, and White has been detained at the dock due to a questionable passport.

How’s that for more *clarity*?

toilet

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14 Comments
  1. Laura H. Chapman permalink

    You really have your own style of wring on this blog. This post has some of the flair of a stand-up comic, and the intrique of a good political thriller, but of course the unravelling is quite a commentary on the overt and often hidden-from-view dealmaking in “the name of the children.” Pace yoursef for the long haul.

  2. BESE has several board members that are lawyers and LDOE has like 6 lawyers on their staff. Can they file a lawsuit on LDOE’s or BESE’s behalf or can those reformer friendly pro-bono groups represent the board without a contract? I imagine that is what they are investigating now…

    • The wording of the statute is “retain,” not “hire,” so I think that they cannot “retain” even pro bono without AG or gov approval. BESE is a state agency. Even the procurement laws include jurisdiction over contracts valued at $0.

      • Sounds like they may have to sue over what retain means.🙂 of course they already have LDOE lawyers in house. I can’t figure out why they wouldn’t just use them? They’ve used them for other cases… maybe there is a civil service issue there? Essentially it would be suing your own boss. I can see where that might be a conflict. 🙂

      • You have me laughing.😉

  3. Jill permalink

    I think I need some clarity on what retain means… sorry. My head is still swimming because I attended the board meeting on Tuesday and left feeling very discouraged for our children and teachers.

  4. lottie permalink

    Mercedes, you are one multi-talented individual! I realize you are not an attorney, correct? I also believe you are a Louisiana graduate, correct? You are an educator, correct?

    If you can discover this information, there may be some who might ask why didn’t White and Chas Roemer do their research before soliciting BESE colleagues to approve a resolution to seek “clarity”–there I go again using the “word of the day!”–which will likely result in a lawsuit to determine if BESE has the authority to sue the governor! What were they thinking?

    Good grief! School begins in approximately five weeks. The majority of BESE rejected a Plan B and instead chose to sue the governor! Some may argue this is not the case. It is true! Two of Jindal’s appointees voted to sue him! What were they thinking?

    Now, with no assessments, Superintendent White needs to offer a plan. To offer no plan is irresponsible. He should swallow his pride and accept Plan B which would allow the use of 2013-2014 assessments.

    • Lottie, I am a product of the St. Bernard Parish Public Schools.🙂 I am not an attorney; I am a state-school-trained researcher.

      I also have nothing to hide and no distracting political enmeshment. This enables me to think more objectively than either Roemer or White.

      I think that the opportunity for White to offer a Plan B has passed him up as far as Jindal is concerned. I think any Plan B will be coming from the governor at this point.

  5. I am reading your book and am about half way through. Do have any research on SC?

Trackbacks & Pingbacks

  1. Schneider: Showdown Between Louisiana Governor Jindal and Commissioner White Gets Amusing | Diane Ravitch's blog
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