While the Gillingham Charter School in Pottsville will open Monday for the first day of the 2016-17 school year, its fate is in the hands of the Pennsylvania Charter Appeal Board, Harrisburg.
Representatives of the state Department of Education recently shared information about the school’s appeal, and discussed the rules the appeal board must abide by. There are two in particular: 1949 Act 14 Section 1719-A, Contents of Application; and 1949 Act 14 Section 1702-A, the Charter School Law, according to Casey Smith, deputy communications director for the state Department of Education.
The causes for nonrenewal or termination are in section 1729-A. They include:
• “Failure to meet the requirements for student performance set forth in 22 Pa. Code Ch. 5 (relating to curriculum) or subsequent regulations promulgated to replace 22 Pa. Code Ch. 5 or failure to meet any performance standard set forth in the written charter signed pursuant to section 1716-A.”
• “Failure to meet generally accepted standards of fiscal management or audit requirements.”
“There is not much flexibility afforded to board members when considering an appeal, as their decisions are based on legal requirements. For example, charter applicants must satisfy the requirements set forth in section 1719-A and meet the legislative intent of section 1702-A. The causes for nonrenewal or termination are in section 1729-A so a district authorizer would have to establish one or more of these grounds,” Smith said Aug. 10.
The Pennsylvania Charter Appeal Board’s decision is highly anticipated by many in Schuylkill County. They include not only the families of Gillingham’s students and representatives of the Pottsville Area School District, who oppose the charter school, but local taxpayers.
In the past year, more than $401,000 in taxpayer money was spent by the school district and the charter school during the charter-renewal process. Both hired attorneys and expert witnesses for a series of public hearings in April and May.
Since the Gillingham Charter School Collaborative worked to establish the charter school in 2010 and 2011, Pottsville Area opposed the idea. And the school district rejected Gillingham’s proposal for a second five-year charter on Dec. 2 and on July 6.
So, the future of the charter school rests with the Pennsylvania Charter Appeal Board.
“At this stage in the process, we are petitioning the Charter Appeal Board at the Department of Education in Harrisburg to repeal the school district’s decision to deny the renewal of Gillingham’s charter. We will present our case to this board in the fall or winter,” Nicolle M. Hutchinson, the school’s CEO and director of education, said Thursday.
“We don’t know the exact timeline, but we expect that it could take us into the late winter. We strongly believe in our school and what our team has accomplished. We are confident that the Charter Appeal Board will uphold our charter. Right now, we are concentrating on the growth and learning that we all, students and adults, will experience this school year. As always, we march forward for the children’s sake,” Hutchinson said.
When Gillingham begins its sixth school year on Monday, it will have 230 students, 36 full-time employees and three-part time employees, according to Rachel Bensinger, Gillingham’s director of organizational development.
The CAB
The Pennsylvania Charter Appeal Board was established in 1997.
“Act 22 of 1997 authorized the creation of charter schools. The Act also provided for an administrative appeal mechanism by way of a body designated as the State Charter School Appeal Board. The Charter School Appeal Board was created by the Act and heard its first appeals on July 1, 1999,” Nicole Reigelman, press secretary for the state Department of Education, Harrisburg, said Tuesday.
In the 2015-16 school year, there were 173 charter schools in the state. Of those, there were 160 brick-and-mortar schools and 14 cyber charter schools, until Education Plus closed in December 2015, according to Smith.
In the 2016-17 school year, there will be 180 charter schools in the state. Of those, there will be 166 brick-and- mortar schools and 14 will be cyber charter schools, Smith said.
“The Charter School Appeal Board consists of the secretary of education and six members who are appointed by the governor and with the consent of a majority of all the Senate members. The members include a parent of a school-aged child, a school board member, a certified teacher actively employed in a public school, a faculty member or administrative employee of a higher education institution, a member of the business community and a member of the State Board of Education,” according to the department of education website.
The current members of the CAB include: chairman, Pedro A. Rivera, the acting secretary of education; Julie A. Cook, a member of the Pennsylvania State Education Association; Lee Ann Munger, a parent of a charter school student; Jonathan E. Peri, a member of the State Board of Education; Scott E. Miller; Mitchell J. Yanyanin; and two attorneys, Ernest N. Helling and Alaina C. Koltash, according to the department of education website.
“The members shall receive no payment for their services but are reimbursed for expenses incurred in the course of their official duties (generally mileage and parking) as provided for in section 1721-A (c) of the Charter School Law,” Reigelman said.
The state Department of Education provides assistance and staffing. The Governor’s General Counsel provides legal advice and assistance, she said.
Board hearings are held at the state Department of Education, 333 Market St., Harrisburg. The next is scheduled for 1 p.m. Sept. 13 at Heritage A, according to the department’s website.
“Meetings of the appeal board are required to be and are conducted under the “Sunshine Act.” All members in attendance at a meeting, either by phone or in person, vote or abstain from voting and those votes occur in an open meeting and are recorded in the meeting transcript,” Reigelman said.
“A hearing officer will be assigned to collect and prepare the certified record, to set a briefing schedule and to address any procedural issues raised by the parties,” Reigelman said.
Hearing officers do get paid. “If they are from the state Office of General Counsel, they get $84 per hour. If they are contracted outside hearing officers, they receive $100 per hour,” Reigelman said.
A hard copy of the certified record is kept in the office of CAB’s counsel.
“The CAB reviews the certified record. What the record includes in a CAB appeal may differ from case to case. It could include: the charter application; the transcript of testimony taken by the local board of school directors; exhibits offered in conjunction with testimony before the local board; any documents referred to or relied upon by the local board of school directors in reaching its decision; and the written decision of the local board of school directors,” Reigelman said.
“Additionally, the assigned hearing officer may allow supplemental evidence that was not previously available to be considered and also has the parties file briefs of legal argument and proposed findings of fact. These documents also are reviewed by the members. After CAB reviews this documentary record, it hears arguments from both parties and asks questions before making its decision,” Reigelman said.
Reigelman said Thursday she was not sure when Gillingham’s case would be scheduled: “No dates have been set for Gillingham’s hearing yet because a hearing officer has not yet been appointed. The first date to be set will be for a pre-hearing conference to deal with any procedural issues and set a briefing schedule.”
Members of the board could not be reached for comment.
Appeal
Gillingham filed its appeal on Aug. 4. The 29-page document was prepared by Mark Morford and Christine Elizabeth Reilly, attorneys with the firm Latsha Davis & McKenna, Mechanicsburg.
A copy was sent to Ernest N. Helling, chief counsel for the state Department of Education, Harrisburg. A copy was also sent to an attorney for Pottsville Area School District, Ellen C. Schurdak, a representative of King, Spry, Herman, Freund & Faul Attorneys & Counselors, Bethlehem.
The appeal includes a history of the appeal process peppered with comments. Below are excerpts from the document:
• “Gillingham provided voluminous records (over 6,000 pages) and responded to several requests for information from the PASD in connection with its charter renewal application.”
• “For several days from April 19, 2016, through May 23, 2016, a public hearing was held on PASD’s attempt to close Gillingham.”
• “The hearing was conducted by Marc Fisher. Mr. Fisher was hired and paid solely by the District. Gillingham had no input in the selection of Mr. Fisher.”
• Eight parents of Gillingham students and five Gillingham students gave testimony at the hearings. The public was also invited to send written comments to the hearing officer. The appeal alleged “none of the testimony of the students or their parents or any of the written comments submitted by the parents was given any weight by the hearing officer.”
• “Gillingham’s performance in Pennsylvania’s SPP (School Performance Profile) accountability system is not ‘declining each year,’ as alleged in the report from the hearing officer hired by the district, but rather varies because of several factors including the continuous and significant changes in the statewide standardized tests and accountability systems that were in place during each school year of the five-year charter.”
• “The SPP scores from Gillingham Charter School should not be compared from one year to the next for the period from the 2011-2012 school year until the 2015-2016 school year because of the significant and substantial changes in the methods used by PDE to calculate the SPP score each year.”
• “Based on the factors described above, the district has not met its burden to prove that Gillingham failed to meet the requirements set for student performance and failed to prove that Gillingham did not perform as well as the district. Any findings or conclusions adopted by the district to the contrary should be rejected by the CAB. The CAB should also reject the district’s attempt to use test score comparisons between a charter school and a school district to support the district’s non-renewal, as test score comparisons between a charter school and a school district are not grounds for non renewing a school’s charter under Section 1729-A.”
• “The facts and information presented by way of testimony and exhibits by Gillingham during the hearing which will be part of the certified record that will be transmitted to the CAB demonstrate that the findings and conclusions on which the district relies to sustain its non-renewal of Gillingham’s charter are in error and cannot support the closure of the school.”