Give Food to a Hungry Kid, Get Fired!

This was an interesting story from Idaho.  Obviously, there must be more to the story.  I think the employee would have had more of a leg to stand on if she would have offered to pay the $1.70 before she was caught giving away the food.  But I also know it is heartbreaking when students don't have food to eat or money to pay for the food.

From USA Today:

"Bowden says she offered to pay for the $1.70 lunch, but her supervisor wouldn't accept her money. "I know I screwed up, but what are you supposed to do when the kid tells you that they're hungry and they don't have any money?" says Bowden, acknowledging she was once warned about giving a student a free cookie. 'This is just breaking my heart."Now NBC News reports the school district on Wednesday night issued a press release saying that "in  the spirit of the holidays," it has extended "an opportunity for (Bowden) to return to employment'...A petition pressing the district to rehire Bowden had some 78,000 supporters as of Thursday morning." 

Probationary Employee compared with a Regular, Full-Time Permanent Employee

What is a probationary employee?  That’s the question we’re being asked to vote upon this month via our requested approval of an MOU between the district and one certain employee.

As I understand the situation, this employee was terminated during the probationary portion of an initial appointment in a new support position within the district.  When the department supervisor asked to speak with this employee, union representation was requested by this individual.  The supervisor ended the meeting and agreed that the employee could bring someone from the union to the continuation of the meeting with the supervisor.   After a period of time elapsed, the supervisor attempted to re-engage  the discussion with the employee, yet the union rep had not been summoned or had not shown up.

Because the employee was on probationary status, because there appeared to be no real significant effort to bring a union rep to the resumed meeting in a reasonable period of time--- this employee was subsequently terminated by this supervisor.   This is allowed because a probationary employee can be terminated any time with or without cause.  This is a universally accepted, widely understood fact of known truth,  Period.

Three and a half weeks later, this same person was able to be hired in another department of the school district, and during this time this person filed a series of grievances over the action that led to her termination from the initial job.  At the first two levels of grievance meetings, the district’s position with respect to the termination was upheld.  

End of story, right?

No, not quite. 

For reasons I do not understand, our attorney “negotiated” a settlement with the union and their attorneys, after we had won two levels of grievance  hearings.   This settlement  includes a payment

What is FERPA Part III: What about Hearsay Information that is Learned Apart from Student Records?

The majority of the school community at Anywhere USA High School knows that Bluto got suspended for drinking whiskey at a Friday Night Football Game.  Is FERPA applicable if Bluto's suspension is discussed by persons who have no access to his records but know about his suspension?

Imagine if there was a student named Bluto at "Anywhere USA High School," and it was widely known that "Bluto" loved to party.  One night, at a High School football game, many students, faculty, staff, parents, and school board members witness Bluto drinking whisky in the stands.  When  he is confronted by SROs- what if Bluto makes a big scene, starts running around the field intoxicated, and eventually slam-dunks his whiskey bottle into a Tuba as the marching band is performing on the field?  Soon, via social media and even news reports and video of the incident being widely disseminated, lots of people find out that Bluto is in trouble.  An investigation is launched by the school, and obviously Bluto will be getting in serious trouble--and EVERYONE is going to know why.   So, if someone from the school discusses what they observed or heard about happening at the Friday Night Football game, even if it mirrors exactly what will eventually appear on Bluto's official discipline record, does FERPA apply?

This is the million dollar question, right?  Here is my take....*

After reading this case, about a student newspaper prank in 1978, it appears pretty clear to the most casual observer that hearsay and information that is known about a student that is not gleaned from his/her official records is not information that is protected under FERPA.

In Frasca v. Andrews, A New York school district attempted to prevent the distribution of a student newspaper that they deemed offensive. The students who produced the student newspaper, "The Chieftan" and their parents sued to allow the publication and distribution of the paper. While the district did eventually prevail and the newspaper was never widely circulated, one of the school district's arguments that the court tossed aside was a that the distribution of the paper would lead to a violation of FERPA --due to the disclosure of student discipline data in one of the articles.  In turning that argument aside in this case, the court explained that  "the prohibitions of the [FERPA] cannot be deemed to extend to information which is derived from a source independent of school records. Even though a school suspension is listed in protected records, as in the present case, the suspension would also be known by members of the school community through conversation and personal contact. Congress could not have constitutionally prohibited comment on, or discussion of, facts about a student which were learned independently of his school records."(Frasca v. Andrews, 463 F. Supp. 1043 - Dist. Court, ED New York 1979)

So, bringing this back to our story about "Bluto" and his whiskey drinking escapades at a Friday Night football game---if everyone knows, to include School Board Members, that Bluto was suspended from school because they saw or heard or were told unofficially about his suspension from Anywhere USA High School on social media---disclosure of this would not be a violation of FERPA.

And the organization that monitors compliance with FERPA for the OCR, the Family Privacy Compliance Office, (FPCO) has at least on two occasions issued opinion letters on this very issue of hearsay information, and both times they have affirmed the Frasca v. Andrews opinion:  Information learned outside of official records, even if it is sensitive and mirrors what is in a student's disciplinary file, is not covered under FERPA.  You can read these letters  for yourself  here and here.

*The content of this post is my opinion and my opinion only-- based upon a fictional account of an incident that happened nowhere ever combined with what I have read and learned about FERPA over the last two months of intensive research.   I am not an attorney, I did not play one on TV,  and I did not sleep at a Holiday Inn Express last night either—but I can read and I do have an opinion on this subject.  But this is one man’s opinion only.

What is FERPA? Part II--"The Locker Room Attack"

The "Daily Muckraker" Newspaper  and other various groups want their readers and the community of Anywhere USA to believe everything they say and write, not unlike how the monks are expected to behave  in this Gahan Wilson Cartoon.

FERPA is simple, yet complex.  It has rules that must be followed in order to assure student records are kept confidential.  But as I pointed out in part I, not everything that is known about a student is protected under FERPA.*

So let's look at a fictitious, hypothetical scenario.  I'll call it the "Locker Room Attack at Anywhere USA High School."

Remember, the account below is a fictional story.

Imagine if a basketball team from Anywhere USA High School is in the locker room after losing an important Friday Night game.  Imagine if two of the players from the team lure a team assistant named "Jorge Zapata" (who has a physical disability) out of the locker room and assault him, knocking him unconscious viciously while simultaneously calling him disgusting racial slurs,  like this. [NOTE: This linked video from a recent actual attack near Detroit, MI is violent, disturbing, contains reprehensible images and language,  and is difficult to watch--viewer discretion is STRONGLY ADVISED-victim in this video, according to news reports, retrieved his phone, was not seriously injured, and the perpetrators were caught....]

Imagine if the attackers steal the victim's cell phone and film the incident with the victim's own camera phone while "Jorge" is unconscious.  Imagine if these assailants place this violent video on a social media platform that many of the students in Anywhere USA High School could subsequently see?

Imagine if "Jorge" wakes up, is able to find his phone, and is not too badly injured, and decides not to report the attack because he is humiliated, and instead he just internalizes the matter, and he keeps the incident to himself.  After all, he knows his attackers, and he hears that they are already lining up their stories to say that the whole incident was nothing more than slap-boxing, and the incident is actually going to be blamed on Jorge.  Everyone starts to repeat the story that Jorge started the whole thing by "slap boxing" the players and starting trouble.  If anything comes of the incident, the attackers will say Jorge is simpy "Lying on them!"

The following Monday though, the students at the school are buzzing over the incident; many have seen the video. [NOTE: This linked video from a recent actual attack near Detroit, MI is violent, disturbing, contains reprehensible images and language,  and is difficult to watch--viewer discretion is STRONGLY ADVISED-victim in this video, according to news reports, retrieved his phone, was not seriously injured, and the perpetrators were caught...]

An investigation by the school is launched.  Students are questioned, and law enforcement is brought in.

Meanwhile, within the next week to ten day period, a duly elected school board member for the Anywhere USA School District hears from three  (3) separate parents and three  (3) separate students about the violent assault, and he also hears about but does not see the video [NOTE: This linked video from a recent actual attack near Detroit, MI is violent, disturbing, contains reprehensible images and language,  and is difficult to watch--viewer discretion is STRONGLY ADVISED]taken of the incident from these constituents.  This particular school board member's district includes Anywhere USA High School, and this board member is very engaged with this school, as he has many relatives that attend here.  Furthermore, this school board member has been vocal about his concerns about violence, bullying, and harassment occurring in local schools like Anywhere H.S. USA.    Shocked at what he has heard,  this particular school board member immediately calls the superintendent of the Anywhere USA school district with what he has now heard from several sources close to the incident.

He is told by the superintendent that the situation is known to the district, and that an official investigation is already underway.   "We've got this" the superintendent tells the board member.

What is FERPA? Part I

FERPA is a law that has been discussed a lot recently in and around the Escambia County School District. It has been tossed around a lot lately.  Some people do not understand this law, what it means, and what it does and does not do.  Some people throw out opinions that are incorrect, and expect us all to just swallow these flawed opinions as if they are somehow sacrosanct.

But I don't agree, and I won't be like a monk from a Gahan Wilson cartoon.

Because of all of this, I’ve done a bit of research myself recently, read about 50 FERPA related cases, large portions of two books, and lots of scholarly articles on this subject.  I’ve also spoken to a total of five lawyers (four of whom I agree with) on this subject and I’m going to be posting some of what I have learned about this law on this site in a multi-part series over the next few days.  I’m also going to be talking about FERPA at our next school board workshop.

FERPA was a law that did not go through the traditional rulemaking process in congress; it was an amendment offered on the floor from Senator James Buckley in December of 1974.  The rationale for the law was to address the need to curtail the widespread practice at that time of publicly funded schools’ disseminating student records and other information to unaffiliated persons outside of the schools. 

Additionally, the law was needed to compel schools to allow parents to view educational records, and to challenge the accuracy of such records.  The law also allowed for penalties to be assessed against publicly funded entities that failed to comply with the law, and this “Buckley Amendment” also outlined a mechanism for the filing of complaints against entities that violated the law.  The Connecticut Parent Advocacy Center has a well-written one-page primer on FERPA, here.

So how does this law apply to individual school board members?

I guess that depends upon whom one asks.  So I’ve asked a lot of people. 

Here is my opinion based upon my research*

I started by contacting the Family Policy Compliance Office(FPCO)—the office in the Department of Education, Office of Civil Rights, that receives, reviews, and investigates alleged complaints related to FERPA.

Their website lists many opinion letters that they have published—I've read a lot of them--although it is not a complete list.  For some specific opinion letters one might need, third party entities must be contacted in order to easily retrieve such opinions.

I’ve requested and received several of these opinions, and they have made for interesting, enlightening reading.

The initial and largest take away I have about FERPA, after thoroughly looking into this law from many different angles,  is that enforcement provisions concentrate on correcting behaviors rather than harshly penalizing institutions for single event infractions.   FERPA a law that is considered by some scholars as “essentially toothless.”  This is because hundreds of complaints have been filed against

Congressional Approval of the NCLB Re-Authorization: Taking the Bitter with the Sweet.....

The House of Representatives passed the latest iteration of the Elementary and Secondary Education Act on Thursday, via a 359-64 vote.  Interestingly, every "no" vote came from Republicans.

From Breitbart:

"One of the Republicans who voted against the ESSA, [Tim Huleskamp] said “the new, longer replacement for No Child Left Behind…continues the massive federal overreach into America’s classrooms and homes, denying kids and their parents, teachers, schools, and states control over their own schools.”“The legislation does not repeal all too many of the onerous regulations, mandates, and days of testing that America’s moms, dads and teachers detest,” he continued. “After fourteen years of NCLB, and billions of dollars in new spending, there has been no detectable improvement to education in America"

I have huge issues with the way the Federal Government intrudes in local school district decision-making, so I'm ambivalent about this bill's passage.

Because Liberal groups are leading the cheers for this bill, and because President Obama has signaled his intention to sign the bill once it clears the Senate next week--I am very leery.

The compromise bill is 1,061 pages long, so how many congressmen really read it?

I'm glad the Common Core issue is addressed and put to bed with this law's passage--this is a good thing.

But I also worry that this law doubles down on huge expenditures on early educational programs that do not produce results that last.

I worry because this law still keeps Washington DC bureaucrats and the DOE too heavily involved in local schools.

All in all, there is just a sense of blah as I read about this law, now renamed Every Student Succeeds Act.  Some bitter, some sweet, but mostly blah...

FCSBM offers Free Ethics Training for School Board Members

To be fiscally prudent with precious taxpayer dollars, I co-founded and serve as President of an organization that serves school board members statewide--the Florida Coalition of School Board Members.

Soon we will be launching our nationwide platform, The American Coalition of School Board Members, so that we can assist board members nation-wide while saving them taxpayer dollars simultaneously.

With today's technologies and readily accessible open-sourced resources on the internet, we believe strongly that prudent, fiscally conservative school board members should leverage such technology to augment their professional training and development as one way to save taxpayer dollars.

A great example of such wise stewardship is this:

Every year Florida School Board Members must take a required ethics course.  We at FCSBM have put together a FREE Ethics Taining Course utilizing readily available materials, already produced at taxpayer expense.  We recently received an opinion from the state Ethics Commission that validates our training program as one that meets the state requirement.

So we have amalgamated the program and we invite any school board member in the state to take this training for FREE!  If every Florida school board member took advantage of this opportunity, state taxpayers would save $58,000.00 dollars.

How?

Because other organizations charge their members $155 dollars to take this training online, on top of and in addition to the $3,000-$4,000 in yearly membership charges these same organizations hit the

How Ideologically Driven Social Engineering Usurps Local Control and Damages Public Schools Part III.....

Like some sort of a cholesterol-lowering Lipitor commercial, social justice engineers want lower numbers of suspensions of certain students for certain behaviors.   So, in order to achieve these lower numbers some states have actually “legislated” away some behavior categories that have previously resulted (rightfully so, IMHO) in student removal from classes.  

Willful defiance was legislated away as a discipline offense in California, and the effects have been devastating to classrooms and teachers in some districts, particularly in Los Angeles.  Teachers are reporting the change has had a devastatingly negative effect on classroom atmospheres.

(For a truly interesting insight, read the real teacher's facebook and article comments on the bottom of this ridiculous piece in the Huffington Post-- and this interesting piece in the LA Times---some of these comments had me laughing so hard I blew coffee through my right nostril!)

Educrats and other water-carriers and useful idiots say to the affected teachers “Talk to the Hand!” as they dance and take victory laps over how doggone effective these policies have become!

Of course these ideologues, most of whom are out of touch and have never stepped foot into a real inner-city classroom, think this policy is just dandy. 

Meanwhile, back at the ranch, the bureaucrats are at it again, this time looking for higher numbers.  Specifically, they are looking for higher graduating numbers overall, percentage wise, for public school students overall and certain students specifically.  

Problem is, in order to meet this lofty goal, the rigor is being eviscerated, and the bar is being lowered in order to get these “higher numbers.”  The evidence of this is all around us:

Astronomically high numbers of  students in NYC cannot  pass the English/Math (or both) parts of their state exams--yet 90 % of these same students are receiving passing grades from their schools in these very subjects.

In Nevada, 58% of the entering college freshmen that are coming from the public school system require remedial coursework.  This, in turn, is leading to higher incidences of college dropouts.

The evidence is all around, hiding in plain sight.  It is not just New York, Nevada, and California. I see High School Juniors and Seniors who get in trouble in school and attempt to write out statements 

How Ideologically Driven Social Engineering Usurps Local Control and Damages Public Schools Part II.....

Beginning at minute 43:32 of this video (Items II, Part II of II & IV) and continuing through minute 47:00 I relay a concern that I have regarding the dis aggregation of discipline statistics based upon race, with goals set that specifically target reduction in discipline incidents by races for certain students.

This, I believe, is a stark example of ideologically driven social engineering that has been creeping into public education with a growing velocity lately, hastening the demise of the public schools.  It is a real problem.

I have always disagreed with this approach because I feel that all students should be treated equally, and if we start dis aggregating behavior incidents by race in order to achieve goals by race then we will invariably lower the discipline bar to achieve these goals to the detriment of good and well-behaved students (of all races) and good teachers.  It will become a self-fulfilling prophecy in many respects.

If we want to truly start treating all students of all races equally, then why are we measuring their behaviors and setting goals for different students based solely upon their race?  I disagree with this approach.

My biggest concern, which I voiced here, is that having such goals will lead to manipulation of the data and numbers at best, and a lowering of behavior standards to meet the goal, at worst. The schools will look at the goal and try to meet it--like the GEICO commercial states, "everybody knows this!".

I consistently hear from multiple sources within the schools that classroom behaviors at some schools are unacceptable, yet the teachers are being prevented from writing referrals until they go through a series of steps that serve to limit referrals. (special area teachers and other school employees and guidance counselors, librarians, etc. do not have to go through the step process, though, and this is infuriating to classroom teachers I have spoken with.  It is an unfair double-standard)

This all concerns me because behaviors that were once absolutely unacceptable in a classroom are now tolerated in order to stem the numbers of referrals generally, and for certain races specifically.

As an example, a teacher at One Middle School in my district told me that students cuss at him and he cannot write a referral;  he must put a "step" on a behavior incident form, and an individual student must receive several such "steps" within a certain time-frame before a referral can be written which would result in such a student being sent to the office or to a counselor.  This is destroying teacher morale, and resulting in stressed out teachers and heavy churn at many of our schools.

Think back to when you went to school:  Can you ever imagine saying to a teacher F%&# this! and then subsequently wadding up an assignment and throwing it across the room and not being sent to the office immediately?  Well, if you answered no, then you would be surprised to know that this sort

How Ideologically Driven Social Engineering Usurps Local Control and Damages Public Schools Part I.....

In central Illinois, a new state law that dictates the if and when of school discipline is being widely panned by professional educators.  The administrators that were interviewed for this article are concerned that the law is taking away discretion at the local level, which will tie the hands of teachers and principals to the detriment of schools in general.  from the Bloomington-Normal Illinois  Pantograph:

"Some Central Illinois educators think a new state law about school discipline needs a time-out.The law, which goes into effect Sept. 15 for the following school year, requires schools to end zero-tolerance policies, limit out-of-school suspensions, address bullying and create a parent-teacher advisory board on school discipline. But educators think those decisions are best left at the local level to find a way to properly discipline students while keeping them in class and in school...The law also states that students can only be sent to alternative schools as a last resort."

One of the comments to the article summed up the potential problems this infringement on local control will create, and how it will damage the schools....from "Freemarketcapitalist's" comment to the article:

"I've seen this coming down the pike for the last four years, and unfortunately it has arrived. This is part of the [President Barack] Obama policy of discouraging teachers from disciplining [certain] students because it is his belief that they are disproportionately disciplined. Forget that the misbehavior warrants the discipline. That doesn't matter. Basically this ties the hands of the teachers even more. They are being Intimidated to NOT discipline [certain] kids, because [President Barack] Obama thinks they are unfairly targeted, even though they aren't. So this takes the power out of the teachers hands and puts it in the students hands. "I dare you to discipline me. I dare you." Do you see how badly this is going to turn out? The behaving kids have to sit there watching while the misbehaving kid challenges the teacher. Then if the teacher dares to discipline the kid the teacher may face disciplinary action from the administration because of these new policies. This will create utter chaos. If I were a teacher, I'd quit before I would put up with anymore. I seriously don't know how they do it now. (By the way, this mirrors the way [President Barack] Obama is going after law enforcement.)"

Finishing Strong and Looking Ahead

If the Good Lord wills it and nothing ridiculously, spectacularly bad occurs-- I will finish my decade in office as an Escambia County School Board Member one year from now on November 21st 2016 at 11:59 PM.

I am going to be running for a different office, the open seat for the District 1 seat on the Escambia Board of County Commissioners, over the next year.  This site, www.jeffbergoshblog.blogspot.com , is my school board blog site--- my election site, www.jeffbergosh.com , is here.  ( in an abundance of caution, I will put my election disclaimer on this blog site---even though it is unaffiliated with my campaign site, starting today)

So several people have asked how I will approach my last year on the school board, and I have given this a good bit of thought.  I'm going to use a track and field analogy to answer this query...  My intention------I'm going to try to finish strong like the guy in the picture above, completing the race and breaking the tape at the finish line in a strong and spirited fashion-winning my race for the commission while finishing strong on the school board simultaneously.

This would be a perfect outcome, one which I will work diligently to achieve.

Here is what I am NOT going to do....I'm NOT going to approach the next year like this, a world record time sprint through the finish line...

I'm definitely NOT going to finish this decade long journey in broke-down fashion  like this....

And I won't arrogantly take the finish for granted, I WILL NOT do this

Here is what I WILL DO:

My intention is to not be a lame-duck (I won't be) and to do my job as a school board member-- right through the end of my time on the board, finishing my time up working closely with whomever my replacement will be.  I'll do this to ensure that there is no break in service and representation at all and a smooth transition for the constituents of district one---kind of like this!

Here's One Compelling Example of Why Every Vote Counts.....

As I have walked door to door in my district for multiple elections over the last 8 years--I always found it peculiar that there are a percentage of citizens who don't vote.  And they'll tell you this un-apologetically.  "My vote doesn't count, so why should I bother?"  This is something I have heard from many.  And the low percentage of eligible voters who cast ballots in important local primaries is further proof that many more eligible citizens who won't admit that they don't vote, display this actual tendency via their inaction on election day.

So yesterday's story out of Mississippi is very illustrative of the consequences of this problem.  There, a vote for a state representative's seat ended in a dead-even tie, with each candidate receiving exactly 4,589 votes.  Just one voter, from either party---that did not vote--could have changed this entire election!!  And there was a lot at stake.

Instead, this election between Democrat Blaine Eaton and Republican Mark Tullos was settled by drawing straws in a "strange ceremony" presided over by Governor Phil Bryant.

from the New York Times:

"Resorting to a game of chance to break an electoral tie is common in many states, and coin tosses are often used to break ties in smaller, local races.  But in few instances had the pot been as rich as this:  If  (Republican Candidate) Mr. Tullos had won, his party would have won a three fifths super-majority in the house, the threshold required to pass revenue related bills..At stake, potentially, was hundreds of millions of dollars in tax revenue, as the three-fifths rule has allowed the Democratic minority to block Republican tax-cut proposals in the past.."

Getting Ahead of an Issue

Some might naively state  "If a memo is voluntarily published, what difference does it make if it was or was not a public record prior to such a voluntary release?"  Some might even say something really flippant like "What difference does that question make, if a memo is shared, that is the same as leaving the barn door open and letting the Horse out!"

Here's why asking the public record question is critically important:

If a memo is created by a public agency in the furtherance of its operation in the state of Florida--odds are that all or parts of it are a public record, either immediately or at some point in the very near future--except in some narrowly defined, very limited categories subject to exemption.

These things live forever.

If a memo is created and disseminated widely, and if it is a subject of contention or significant gnashing of teeth---odds are it will be revealed sooner rather than later.

So the feckless, ignorant, and utterly fetid assertion that such a record will not become a public record unless someone voluntarily releases it, or because someone voluntarily released it, is nothing but a ridiculous, naive,  red herring.

The real issue of importance, the real matter at issue,   is this:

Creation of memorandums that ultimately will become subjected to release under Florida's public records laws must be carefully considered, particularly if such memorandums might contain unseemly allegations, explosive claims, and/or potentially damaging or inaccurate conclusions.

So should such memos even be created at all, or under what dire circumstances should they be created?  Shouldn't the process of creating such records be re-worked, with a thoughtful decision matrix put into place delineating the when and if of such record creations?

Because under the current environment and protocols, apparently, nobody knows when they might be the recipient of such a memo.....

Ans so yes, sometimes being proactive in the face of an issue or a potential issue is an appropriate action to take; It is called getting ahead of a problem.  Intercepting and deflecting an attack. Contingency planning. Controlling spillage.

This is why it is not an uncommon practice among Bomb-Squads worldwide that encounter suspicious packages to blow up such potentially explosive items immediately.  Often, these bomb-squads proactively, purposely blow up bombs they find so they can render these devices inert or they can control detonations, minimizing and/or isolating the extent of damage caused by such devices.

Think about it.

Why the Board/Attorney Relationship Should be Carefully Memorialized in Policy

I believe  a complete and thorough description and delineation of the school board/attorney relationship, along with a firm set of expectations for the conduct of each, should be memorialized in School Board policy.  It is unfortunate, but as I explained in the workshop (beginning in minute 46:00 of part 1 of 2)  as I presented this PowerPoint on the merits of and reasons for such a proposed policy, sometimes it takes unfortunate incidents, accidents, or disasters to spotlight deficient processes, policies, and/or procedures.

Such an incident occurred last month with my receipt of this memo, unsolicited, from the legal office. I did not request it, I did not want it, and I believe it was a badly flawed memo that became a public record the minute it was produced and widely disseminated.  This memo, for various important reasons that I have detailed here, here, and here--is potentially damaging to the School Board in general, and to me in particular.  This memo should not have been written.

My counterparts on the board disagree with my request to add such changes to policy;   instead, they prefer addition of any such necessary modifications to the attorney's contract.  I can live with this.  I'll research this bring suggested changes/modification to an upcoming board workshop.

But something must be done to force greater consideration before the attorney unilaterally creates  public records that are potentially damaging to the board.

While at this workshop the school board's attorney and at least one other board member loudly and publicly disagreed with my assessment that her memo was, indeed, a public record the moment she created it--an analysis of various Attorney General Opinions and informal Advisory Opinions as well as Florida Statutes describing public records point to the inescapable conclusion that this memo was and is a public record.

Why?

1.  The memo was sent without the typical banner across the email describing it as "Attorney Work Product."  All previous memorandums sent to School Board Members relating to litigation, adversarial proceedings, or imminent litigation or adversarial proceedings from this attorney that were considered Attorney Work Product carried forceful  "Do Not Disseminate--Attorney Work Product Applies"  disclaimers.  This memo carried no disclaimers.

2.  In order for our attorney to invoke the attorney work product exemption for this memo, it must have been prepared "specifically (emphasis added) for civil or criminal litigation or for adversarial administrative proceedings or prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings. (Section 119.071 Florida Statutes)  In this case, the memo was prepared because the attorney and her paralegal "Researched FERPA and voting recusal issues related to social media posts made over the past few days...and prepared a letter to board

Hillary Clinton's Evolving Position on Public Charter Schools....

Her husband supported charter schools, as did her former boss and current president Barack Obama.  Hillary used to support them as well, until left winger Bernie Sanders started surging in the polls, forcing Clinton to move to the left in order to appease the special interests on the hard left....


From Politico:

"Former Secretary of State Hillary Clinton sounded less like a decades-long supporter of charter schools over the weekend and more like a teachers union president when she argued that most of these schools “don’t take the hardest-to-teach kids, or, if they do, they don’t keep them.”

Her comments in South Carolina came straight from charter school critics’ playbook and distanced her from the legacies of her husband, former President Bill Clinton — credited with creating a federal stream of money to launch charters around the country —"

Read     Hillary Clinton Rebukes Charter Schools

18 Questions

What happens when an attorney and an individual board member find themselves at odds over important and urgent school-related matters---and the board attorney REFUSES to answer questions and/or provide legal opinions?


What happens when an attorney that purportedly works for the school board decides to write a memo to one board member, one part of her client, unsolicited, and that board member takes issue with this?

This happened with this memo which was sent to me unsolicited and copied to persons outside the client, other members of the school  board, and various secretaries----with no disclaimers attached describing it a privileged attorney client work product.

This memo, due to the way it was disseminated, instantly became a public record that could be badly damaging to the client, the school board, and one part of the client, me.  I could not get a straight answer from the attorney about why she felt it was not a public record and what the specific exemption would be preventing disclosure---- however I am aware that exemptions from disclosure are narrowly construed to effect broad public policy favoring disclosure. (WSMAA, 1998, p.18)

This memo became an instant public record, so far as I can tell, due to the way it was disseminated.

That is problematic.

Obviously I strongly disagree with the content of the memo, and I strongly disagree with the rationale for releasing this memo, the way it was released and the insinuations raised by this memo.

I disavow the content of this memo and disagree completely with every insinuation contained within this memo.

From day one when I received it, I have voiced my disagreement while simultaneously I've been trying to get answers to questions I have about this memo.  Our Board attorney, Donna Sessions Waters, refuses to answer any of the legitimate questions I have related to this memo, either in writing via email, or via a sit-down, face to face conversation.  I have emailed her three times with specific requests and questions about this memo, and these questions have been ignored.

In an attempt to straighten this issue out I requested and scheduled  a meeting with Donna Waters yesterday, 11-10-2015 at 4:00 PM, at which point I was going to ask her 18 specific questions ( here, here, here, here, and here ).  I have tried to receive answers to these questions via email, to no avail, about her conduct as it relates to her creation, dissemination, and subsequent refusal to answer any of my legitimate questions about this memo.

I've never witnessed such unprofessional, insubordinate, and disrespectful conduct from an employee

OCR Guidance Given Regarding Transgender School Facilities

With this letter sent from the Federal Government to an Illinois School District, significant guidance is being given regarding the treatment of transgender students in public schools.

From the New York times:

Federal education authorities, staking out their firmest position yet on an increasingly contentious issue, found Monday that an Illinois school district violated anti-discrimination laws when it did not allow a transgender student who identifies as a girl and participates on a girls’ sports team to change and shower in the girls’ locker room without restrictions. Education officials said the decision was the first of its kind on the rights of transgender students, which are emerging as a new cultural battleground in public schools across the country..Daniel Cates, the district superintendent, said in a statement Monday that he disagreed with the decision, which he described as “a serious overreach with precedent-setting implications.”

Emails Shed Light on What Prompted Memorandum

I have been provided a large stack of emails that I requested regarding the events leading up to a memo that was sent to me by School Board Attorney Donna Waters last week.

The emails shed light on a lot of different aspects of what apparently led to the creation of the memo that was sent to me, the memo that was improper, unprofessional, and badly flawed in my opinion.

Sadly, it appears as if several social justice groups and at least one parent prompted this memo to be written.  I'm posting those emails here.

The Superintendent of Schools has told me flatly that he did not request a memo be written by Mrs. Waters regarding my conduct.

I certainly did not request it--I did nothing wrong.  Mrs. Waters certainly knows how I feel about this matter upon reading this response and this follow up.

So who requested that the Board Attorney write this memo to me, copied to multiple others?

Here is what I believe...

It appears as if the attorney had done a significant amount of research in order to write and submit a "Viewpoint" to the Pensacola News Journal.  Whether or not this was ever submitted, I do not know.

Apparently, possibly, A radio interview by the father of the victim of the WFHS bus incident may have circumvented the need for this "Viewpoint" to be submitted.  Who knows?

The radio interview totally destroyed the PNJ's characterization of this incident and a lot of district employees were happy that this parent spoke out.  This parent heralded the actions of the board and district, while simultaneously chastising the PNJ for their horrible straw man hatchet job editorial of 10-18-2015.

So with all of the research on FERPA compiled, and after the father of the victim spoke out, why would such a memo subsequently be sent by an attorney to her client?  Why not a phone call or a discreet conversation.  Why?

It appears that I was excoriated because some parties outside of the school board, the Board Attorney, and perhaps even the chair of the board did not like the fact that I commented on social media.

Apparently they didn't like me countering the apparent propaganda  and hearsay published on the PNJ with hearsay from constituents that I was receiving about this WFHS bus incident that was totally opposite of the narrative the PNJ was trying to create?

Who knows?

But at the end of the day, I have yet to be officially briefed on this matter.  I have not seen any videos, documents, or hearing transcripts.  I've yet to even receive an official discipline recommendation for any students involved in this incident.  I do not hold any student records I do not have access to any student records, and I have divulged no records to anyone and I certainly have not violated FERPA!  If anyone at the district thought I had violated a law, they should have reported it!  I didn't violate any law, and I don't violate laws.

That is why I feel the written memo was wrong, boderline libelous, and the situation was badly handled by our legal office and others; the memo never should have been written.  This memo is nothing but a dog-whistle being blown loudly  that could embolden enemies of me in particular, and the school board generally, to investigate and dig further and make this situation much more complex for the client.

What attorney in his right mind would write such a public record memo that could potentially bring harm to his/her client or a part thereof of his/her client?

Why so quickly and prematurely write a legal opinion that one part of her client must recuse?

This was outrageous.

This MESS will be discussed at the next board workshop, and hopefully a better, more focused board policy will be forthcoming that will speak to the when, where, and how written memos about the client or parts thereof are created and disseminated publicly by the School Board's General Counsel going forward.

Conservative School Board Members Recalled

Back in 2014, conservative members of the Jefferson County School Board questioned the content of the AP U.S. History Textbook---and received substantial blowback from the establishment for even daring to question the status quo.

Fast forward to September of this year, and these 3 conservative  school board  members became the subject of a recall election.

Last night, the three conservative members of the Jefferson County School Board were removed.

From the Huffington Post:

"Various estimates suggest that roughly $1 million was spent on the race, characterized as a“proxy war” between teachers unions and education reform advocates. Americans for Prosperity, a conservative group backed by the billionaire industrialist brothers Charles and David Koch, spent “in the low six figures” on television ads and mailers in support of the school board members at risk of being recalled. More than $277,000 was spent by individuals and groups, including teachers unions, in support of the recall."

Ken Witt, one of the recalled board members, stated to the media that  "sometimes it's difficult being the tip of the spear enacting change."

FCSBM Releases Legislative Priorities for 2016

The Florida Coalition of School Board Members  (FCSBM) Legislative Task Force (LTF) has approved the following positions and priorities for the 2016 Legislative session. After a three day comment period by the voting members, it was unanimously ratified by the executive board October 27, 2015.

The 2016 platform can be characterized under three main themes: 

1. Flexible Accountability; 2. Equality; and 3. Freedom of Choice 

Select 2016 Legislative Positions & Proposals

• Assessment and Accountability -
  • Allow flexibility for Districts to use concordance scores on nationally normed assessments, including those offered with paper and pencil, to meet the statutory requirements of FSA.
  • Progressively raise Florida’s proficiency “cut scores” to align with, and surpass, the NAEP standard over a 4-year period. This allows years 1 & 2 to provide a “soft landing” as we transition to even higher levels of expectation.
  • Continue use of standardized test scores, including growth rates, as part of a revamped multi-factor accountability system, to include a “balanced scorecard” approach with transparent metrics outlining each aspect of the school and district grading system.

• Public Charter Capital Outlay Incentive - Districts that voluntarily and equitably, on a per-student basis, share capital outlay resources with public charter schools may levy up to 1.75 millage (vs 1.5 millage currently allowed). 

• Relating to Membership Organizations that Receive Public Funds - FCSBM believes that individual School Board Members should determine the organization, if any, to which their membership dollars flow. Repeat of HB 549 (2015) - Sponsors pending.

We believe these ideas will provide the unity and focus needed to drive legislation forward this year, furthering FCSBM's mission statement "Relentlessly Dedicated to Student Success" ^SM. 

The FCSBM Board is also pleased to announce commitments from key education lawmakers to join FCSBM Members for webinars and tele-townhall events during session.  FCSBM will provide the 'face time' you need to ensure School Board members have an effective voice in Tallahassee.

If you are a sitting school board member interested in volunteering for the Legislative Task Force in the coming year, please email Shawn Frost at info@shawnfrost.com

We look forward to your participation in these exciting times! 

Jeff Bergosh, School Board Member Escambia County, President of FCSBM
http://FCSBM.org

Was this a Violation of the Sunshine Law?

Yesterday afternoon and early evening was surreal.  After receiving this email memorandum from the school board's attorney, and after I immediately responded back to the attorney with this email (redacted), my response was copied, by our attorney, to another board member.  (I'm redacting my response to shield my thoughts on how I may vote on the WFHS bus incident.)

I am astonished that our own attorney would copy another board member with my response, which included my thoughts on an incident that will surely come before the board for a vote.  Was this a violation of the Sunshine Law? I'm not an attorney and I don't know for sure, but I have asked our attorney to provide a written memo on this question, post haste.

First off, the initial email that I received with the memorandum was uncalled for, I did not request her opinion, and I did not need her opinion.  What she suggests  in her memo I disavow and disagree with in the strongest terms.  It is borderline libelous.  Nobody can believe, nor has anyone I have spoken with about this disparaging memo ever heard of an attorney excoriating his/her own client in such a written memo.

No phone call, no discretion, just a chastising, chiding, inappropriate memo.

I have done no wrong, and I have violated no laws.  I simply corrected an incorrect narrative that was being told in the PNJ over and over, a narrative that was completely opposite of what I had been told by multiple parents and students with firsthand knowledge of the incident in question.  I have no official knowledge of this incident, I do not know, even to this minute, what these students' eventual punishment will be. I do not know who these students were.  I have no official knowledge of this incident, a point I made clear in every post, blog entry, and comment I have made thus far with respect to this incident.

This memo, by our attorney to her client, was an absolute disaster and is totally baseless.  The only thing I have done here is to counter an ideologically slanted, biased narrative in the press with hearsay of which I was aware that was completely opposite of what hearsay the PNJ was publishing.

  With the father's own testimony on the record now, completely discrediting the PNJ and making them appear foolish, It is quite puzzling to me as to why I would now be chastised.  I stood up and called BS on the slanted yellow journalism.  Jefferson said it best--"Evil flourishes when good men

What Could the Consequences Be for Transmitting Indecent Video of Underage Students?

In El Dorado County, Northern California, this led to charges being levied against students.  Two teens were arrested there for distributing an obscene video of an under-aged classmate, the video in question having been taken without consent of the victim.

This is serious.

From the LA Times:

"Two teenage boys in Northern California have been arrested in connection with distributing child pornography after making a sex tape with a teen girl without her knowledge, authorities said.  Deputies later arrested the two male teens on suspicion of possessing and distributing child pornography, sexual exploitation of a child and conspiracy to commit a felony crime, authorities said."

Here in Pensacola, Florida, our Newspaper the Pensacola News Journal has written several pieces on a story locally that centers around the production of a video that, according to many unofficial sources that are well aware of the case, depicts a victim restrained against his will, stripped naked, and videotaped--with the video being subsequently disseminated against the victim's will.

Instead of taking this situation seriously, our newspaper has instead chosen to spin this story first in a way that minimized the incident, by referring to this episode multiple times as "pantsing" where only underwear is exposed.

Next, the paper has attempted to put a racial angle on the story by taking one side of the account from an alleged participant's parent, attempting to make this horrible incident look as if Black students are being punished unnecessarily by a system out to target them simply for their race.

Third, the paper is excoriating the superintendent of schools for not speaking publicly about aspects of the story about which he has detailed information--knowing full-well that if the superintendent did  divulge this information he  would be guilty of violating FERPA!

So instead of being fair and unbiased, the paper continues to make the classic mistake of reinforcing failure.  This is violating classic Sun Tzu tenets that these Journalists should understand.

PNJ, however, appears to be staying with the narrative that this was simply a harmless prank and the punishment that is being recommended is somehow overly harsh and racially-based  because the alleged perpetrators are black.

Most sinister of all, even though details have emerged that detail the fact that this incident was not a prank and that all the officals involved, the students involved, and the victim here are all black--this important fact has not been reported.

The cherry on top of this whole episode, not reported by PNJ, is that the parent of one perpetrator invited the media to sit in on the hearing where the truth about this incident would become known to the media----and then at the last minute this parent renegged on allowing the press to attend.

Why?  This is an important aspect of the story that PNJ should have reported.

So the failure reinforcement continues....

Every one of the pieces the PNJ has done on this issue has been an inaccurate, incomplete, and biased fail.

All three articles have been widely panned by the online facebook posters in PNJ's forum.

Why? ---Because Americans are tired of biased, ideologically-centered news reporting that ignores facts to further biased agendas.....that's why.

Repeating Something Often and Loudly Does Not Make It True

During WWII, propaganda was a weapon used to devastating effect. 

Joseph Goebbels wrote that “When one lies, one should lie big and stick with it.”  The Nazis attempted to use propaganda to rationalize their genocide against Russian Civilians and German Jews.   Ultimately, and thankfully, what they tried to do failed and the Nazis were defeated by America, Great Britain, and Russia. 

Unfortunately, this defeat did not come early enough to save 13 Million Russians and 6 Million Jews from death at the hand of the Nazis.

Today, many different groups in the United States utilize this same tactic—telling big lies often and loudly to drive public perception and ultimately to sway public opinion.  In politics, in the media, among various ideological factions, and even among different religions—people stretch, distort or manipulate the truth and/or tell outright lies.

 

Telling a lie often and telling it loudly does not make a lie the truth, though. 

Because everyone is entitled to his own opinions--- but not his own facts!

One Lie that I hear a lot is especially egregious.  It is a whopper.  It goes a little something like this:

  

“Professional educators, counselors, principals, school board members, and other personnel involved in public schools nationwide are targeting, purposely, black students for harsher discipline than non-black students due strictly to the race of these students!”

This statement is typically accompanied by some sort of a statistical presentation describing the make-up of black students that receive out of school punishment compared to the percentage of white students that are suspended, contrasted with a school community’s overall racial makeup.  A pattern nationwide has been observed and documented whereby a disproportionate number of black students, as compared to these same students’ percentage of a school’s total population, end up receiving greater numbers of out of school suspensions when compared to other-race and white students.

This pattern is repeated all over the country.  For decades.

But the lie comes with how this information is (mis)characterized. 

People make faulty conclusions about what this phenomenon means.  Special interest groups and social justice organizations point to this and say “See, the schools are targeting black students, and

The School District Must Follow the Law and School Board Policy

I feel sorry for students who have train-wreck home lives, I truly do.  I want to do everything I can to help such students.  And there is no shortage of such students here in Escambia County.

With this said, there is absolutely no excuse for any student-no matter how poor he is, where he lives, or what his dysfunctional home life might be---to bully, harass, and/or abuse another student.  Every student deserves to be safe at school—rich, poor, White, Black, Hispanic, Asian—all students deserve a safe school environment and I’m fed up with the inaction on corralling the bullying taking place in our schools.

I have brought examples and described circumstances that were not handled appropriately.

Yesterday I had to point out yet another one, where the law and school board policy apparently was not followed.

It seems like every month lately I hear from constituents and/or I find in the back-up documents anecdotal evidence that our policy against bullying and harassment (mirrored from state statutes) is not being followed with fidelity.

I went ballistic in February over this, and was assured that we were doing it right from “now on.”

Two months later in April of this year, the same thing happened at another school and the teacher was deliberate in describing the incident as bullying, even going so far as to document that the perpetrator had victimized the same student on more than one occasion.  The teacher knew it was bullying, and called it that.  

But the school neither coded it as bullying, nor did the statutorily required 10 day investigation.  If 

The Pensacola News Journal's Devastating Rush to Judgment...

With an article published this past Thursday that only portrayed one side of a story, and now with a one-sided, hatchet-job editorial today, the Pensacola News Journal has demonstrated the worst kind of journalism and news reporting--"rushing to judgment" on an issue about which they have very preliminary and inaccurate information.

This is disappointing.

Calling the punishment (that has not even been determined yet, by the way) "disgusting" and "unjust"--they have apparently made up their minds that the account given to them by relatives of some of the accused in this matter are the rock-solid, gospel facts.

Perhaps this reporting is an attempt to intimidate district officials into watering down any applicable punishment here by floating a narrative that minimizes the impact of this infraction?

If this is what is happening, this is truly "disgusting"--to coin a term used in today's editorial.

Throwing out statistics devoid of context to support the flawed notion that our school district targets minority students for more harsh punishments based simply upon their race is also a prominent feature of today's editorial--which equally "disgusting" and untrue.

Facts are facts and the fact of the matter is that minority students in Escambia County get many more chances (compared to white students) to reform their conduct before they receive out-of-school discipline.  This is a fact that I have demonstrated already and that a thorough analysis of the statistics shows to be true.

Ignoring this reality to perpetuate an opposite  narrative is also "disgusting."

Here is the real story, though.

The school board has yet to even be briefed on this school bus naked videotaping and dissemination