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School District court case opens up questions about 'pay to play'

By Helen Gym on Nov 13, 2013 01:12 PM

“Pay to play” is a widely reviled practice in government, but that’s effectively what the District's legal argument would establish through its challenge of an open records case in state court.

For more than 10 months, Parents United for Public Education and our lawyers at the Public Interest Law Center of Philadelphia have been fighting to make public the Boston Consulting Group’s list of 60 schools recommended for closure and the criteria it used for developing the list. In 2012, BCG contracted with the William Penn Foundation to provide “contract deliverables,” one of which was identifying 60 public schools for closure. William Penn Foundation solicited donations for this contract, including some from real estate developers and those promoting charter expansion. The “BCG list” was referred to by former Chief Recovery Officer Thomas Knudsen in public statements. But District officials refused to release the list, saying that it was an internal document and therefore protected from public review.

In April 2013, Parents United and PILCOP won our case with the Pennsylvania Office of Open Records, largely because the District appears to have shared the BCG list with top officials at the William Penn Foundation. Now the District is taking its challenge to state court.

District officials aren’t just going to court to block the release of the BCG list. They want to completely redefine what it means to declare a document internal. In particular, the District's arguments show that it believes that certain selectively defined groups -- specifically donors -- can essentially buy their way to specialized access otherwise denied to the public.

Here’s their rationale.

“William Penn Foundation’s role was that of a grantor who funded the second phase of BCG’s consultant services. As grantor, the philanthropic entity had the right – and indeed an affirmative duty – to know that BCG’s services were rendered and to review the work product prior to issuing payment to the consultant. While the School District appreciates and makes every attempt to facilitate the underlying purpose the RTKL, the OOR erred by ordering disclosure of records because the records may not have been kept “internal.”

Certainly, public agencies must be allowed to engage stakeholders and members of the philanthropic community without fear that sensitive and otherwise predecisional deliberative records would be subject to disclosure. In this case, records were not shared with other citizens, advocacy groups or for-or non-profit organizations and denied to the Requester. Rather, some of the records may have been shared with a ‘grantor’ although Mr. Knudsen could not recall a specific instance of such disclosure.”

The state’s definition of “internal” is limited to "members, officials and employees” of an agency. But if the District has its way, “stakeholders and members of the philanthropic community” will now receive enormous privileges once afforded to a small, restricted class. In this case, the privilege is being able to submit undisclosed advice to top District decision makers “without fear” of disclosure. Are we really OK with saying that being a big donor exempts you from requirements that apply to everyone else? Are we OK with the District designating certain members of the public for "internal" privileges while selectively denying access to others? 

Is the new definition of "right to know" now "pay to know"?

Consider this situation. Last month, an anonymous donor contributed more than $200,000 to re-open the libraries of Masterman and Central High School. What type of "internal" privileges could be afforded this donor under this exemption? Sitting in on high school selection decisions? Where are the lines? It's a slippery slope.

It’s important to remember that in 2012, the Boston Consulting Group came under intense criticism for a controversial plan that promoted school closings, massive charter expansion, and privatization of key functions within the District. In December 2012, Parents United filed a complaint with the City Ethics Board about whether the contract between the William Penn Foundation and BCG amounted to lobbying (as opposed to “philanthropy”). What’s at stake is more than just a list of schools. It’s a fundamental question of the integrity and public nature of decisions that carry massive impact and hold enormous consequences for parents and families.

The closing of 24 schools in Philadelphia remains the single most important issue of the year. The closings affected more than 9,000 students and transformed school communities. They also had an impact on political and real estate dealings, with tens of millions of dollars at stake. Last week, city leaders guaranteed a $61 million swap to fast-track real estate deals for shuttered school buildings. News reports indicate that several, mostly unnamed, buyers have shown interest in sweeping up all the properties for a single sum -- in one case, an offer of $100 million.

Given the stakes, it is absolutely the public’s right to know what’s in the documents presented to the District. Throughout most of the decision-making process regarding the school closings, the public was kept in the dark. If others – especially deep-pocket donors – had a chance to weigh in, shape the criteria, and vet the school closings list before it became a public document, that should matter, and matter deeply, to all of us.

Once again the District seeks to blur the lines separating the public good from private interest on issues of dramatic importance to parents, students, and the broader community.

A hearing on this case has been tentatively scheduled for Dec. 2.

Read the District's brief before the Court of Common Pleas here.

Helen Gym is a founder of Parents United for Public Education and a Notebook blogger.

The opinions expressed are solely those of the author.

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Comments (12)

Submitted by Anonymous (not verified) on November 13, 2013 1:33 pm
SRC Commissioner Feather Houston worked for the William Penn Foundation which is run by the Haas family. She now works for another foundation that is run by the Haas family. Is that a conflict of interest? Do they buy her vote on the SRC?
Submitted by Poogie (not verified) on November 13, 2013 2:52 pm
Probably. Pennsylvania is one of the last states where all politicians are for sale and do not give a damn what the public thinks, Got to admire the moxie of there unabashed corruption.
Submitted by Anonymous (not verified) on November 13, 2013 3:28 pm
Sylvia Simms was a "disabled" school bus aid until Comcast hired her and then she was put on the SRC. Conflict of interest? What is she paid by Comcast? What hours does she work for Comcast? I'd love that job...
Submitted by Anonymous (not verified) on November 13, 2013 3:13 pm
I think this is a fair question. I think we have a right to an answer to this question.
Submitted by Anonymous (not verified) on December 17, 2013 11:11 am
The bus matron to Comcast trail is a puzzling one, but then again she was Arlene's parent go to.
Submitted by Joe K. (not verified) on November 14, 2013 7:13 am
When Corbett semi thinks, The Feather speaks.
Submitted by please (not verified) on November 13, 2013 5:53 pm
I would ask the Mayor and his representative on the Great Schools Compact, Lori Shorr, to respond to this. Do his constituents have a right to know what is going on in the school district? Is he OK with the SRC following the dictates of a secretive cabal?
Submitted by Anonymous (not verified) on November 13, 2013 6:10 pm
Don't forget that Dworetsky's wife is a big muckety-muck at Comcast, too.
Submitted by Maureen Fratantoni (not verified) on November 13, 2013 10:37 pm
Great work Helen! Getting right down to "the brass tack's". Down to the heart of the matter!
Submitted by Anonymous (not verified) on November 14, 2013 12:41 pm
Feather was making more than Ackerman (over $300,000) working for William Penn Foundation. She was a Corbett nominee. She knows how to play the game and deposit money in her bank account. But it is all for the children.
Submitted by Anonymous (not verified) on November 14, 2013 1:38 pm
Exactly, the District isn't transparent about much. Their philosophy is -it's all about the MONEY- screw the stakeholders, including the children.
Submitted by Anonymous (not verified) on November 14, 2013 6:26 pm
Ironic that the real goal of the crowd pushing this right to know nonsense is keeping people in the dark about how badly the district is run. This is basically a SLAPP suit. God forbid any outside observer quantify the 10 million a year the district wastes on SEIU fraud or the myriad other ways the district is mismanaged for its employees benefit. Guess we didnt have a right to know THAT.

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