Attorney General sets deadline for Dallas ISD Opinion on legality of four-year Trustee terms after December 31, 2007

The office of Attorney General Greg Abbott has set a deadline of January 19, 2009 for receipt of briefs and additional comments from all interested parties regarding the Opinion on the legality of the Dallas ISD decision to change the length of Board member terms after December 31, 2007 and cancel the 2009 Trustee election.

All interested parties should send written submissions as indicated in the letter from the Chair of the Opinion Committee below.

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ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

December 17, 2008

Mr. Robert Scott
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494

Re: Authority of the board of trustees of an independent school district to change the length of its members' terms after December 31, 2007 (RQ-0770-GA)

Dear Commissioner Scott:

We have received your request for an attorney general opinion, dated December 3, 2008, and have designated it as Request No. 0770-GA. Please refer to that number in future correspondence with us about this matter. Section 402.042 of the Government Code provides that the Attorney General shall issue an opinion not later than the 180th day after the date that an opinion request is received. TEX. GOV'T CODE ANN. § 402.042(0(2) (Vernon 2005). We received your request on December 8, 2008 setting a due date for your opinion of June 3, 2009. We will respond by that date, or before, if possible.

By copy of this letter we are notifying those listed below of your request and asking them to submit briefs if they care to do so. If you are aware of other interested parties, please let us know as soon as possible. We ask that the briefs be submitted by January 19, 2009 to ensure that the Opinion Committee will have adequate time to review and consider arguments relevant to the request from all interested parties. Written submissions are most useful, as the members of the Opinion Committee are not available to comment on or discuss the merits of legal questions at issue in an opinion request. Parties may request an extension of time to file a brief by calling (512) 463-2110.

Very truly yours,

Nancy S. Fuller
Chair, Opinion Committee

NSF/JRG/Ini
Enclosure: Request No. 0770-GA

Mr. Robert Scott - Page 2

cc: The Honorable Royce West, Chair, Committee on Intergovernmental Relations, Texas
State Senate
Ms. Ann McGeehan, Director of Elections, Office of the Secretary of State
Ms. Joy Baskin, Director of Legal Services, Texas Association of School Boards
Dr.. Wendy Lee Gramm, Chairman of the Board, Texas Public Policy Foundation
Mr. Michael Hinojosa, Ed.D., Superintendent of Schools, Dallas Independent School
District
Mr. Rolando L. Rios, Attorney for Dallas ISD, Rolando L. Rios and Associates
Mr. Tom Smith, Executive Director, Public Citizen-Texas
Mr. Johnny Veselka, Executive Director, Texas Association of School Administrators
Mr. Kyle Ward, Executive Director, Texas PTA
Ms, Suzy Woodford, Executive Director, Common Cause of Texas
Ms. Teresa Spears, Governor's Appointment Director

POST OFFICE Box 12548, AUSTIN, TEXAS 78721-2548 TEL:(512)463-2100 WWW.OAG.STATE.TX.US

An Equal Employment Opportunity Employer Printed on Recycled Paper

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TEXAS EDUCATION AGENCY
1701 North Congress Ave. Austin, Texas 78701=1494 512/463-9838
http://ww -.tea.state.tx.us

Robert Scott
Commissioner

December 3, 2008

Honorable Gregg Abbot
Attorney General of Texas
Post Office Box 12548
Austin, Texas 78711-2548

Re: Attorney General Opinion Request

Dear General Abbott:

At the request of a Dallas Independent School District ("DISD") trustee, I am seeking your opinion as to the effect of Section 11.065, Texas Education Code on the ability of a board of trustees to change the length of terms for that body.

As you know, most school districts in Texas are subject to Section 11.059, Texas Education Code, which allows the board of trustees of a school district to serve either a three or four year term. That section was amended by the 2007 Texas Legislature to add subsection (e) and thus authorize boards of trustees to change the length of their existing terms:

(e) Not later than December 31, 2007, the board of trustees may adopt a resolution changing. the length of the terms of its trustees. The resolution must provide for a term of either three or four years and specify the manner in which the transition from the length of the former term to the modified term is made. The transition must begin with the first regular election for trustees that occurs after January 1, 2008, and a trustee who serves on that date shall serve the remainder of that term. This subsection expires January 1, 2013.

We have understood Subsection 11.059 (e) to authorize boards of trustees to change the length of their terms only until December 31, 2007'.
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Subsection 11.065 (e) at least partially overlaps an authorization pursuant to Acts, 80th Leg., Ch 1010, Section 2 that also created a December 31, 2007 deadline. We also understand that some school districts have been required to change the terms of trustees after the December 31, 2007 deadline in order to comply with the joint election requirements under section 11.0581, Texas Education Code. For example, a school district holding joint elections with a municipality could be forced to change its election to a different date should the municipality change its own election date. 2 Acts, 2003, 78th Leg., Ch. 344. Note this act adopted a Section 11.064 of the Education Code, which was renumbered in 2005 as Section 11.065. 3 Committee Report available at hftp://www.capitol.state.tx.usitIodocs/78R/analysis/doc/SB00688H.doc.
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DISD is subject to certain other state statutes that do not apply to all school districts. Specifically, we understand Section 11.065 of the Texas Education Code to apply to DISD:

Sec. 11.065. APPLICABILITY TO CERTAIN DISTRICTS.
(a) Sections 11.052(g) and (h) and Sections 11.059(a) and (b) do not apply to the board of trustees of a school district if:
(1) the district's central administrative office is located in a county with a population of more than two million; and
(2) the district's student enrollment is more than Inlya And less than 200,000.
(b) Section 11.053 of this code` and -Section 141.001, Election Code, apply to the board of trustees of a school district described by Subsection (a).
(c) A trustee of a school district described by Subsection (a) may not serve a term that exceeds four years.
(d) Notwithstanding Chapter 171, Acts of the 50th Legislature, Regular Session, 1947 (Article 2783d, Vernon's Texas Civil Statutes), to the extent consistent with this section, the board of trustees of a school district described by Subsection (a) may adopt rules necessary to govern the term, election, and residency requirements of members of the board that may be adopted under general law by any other school district.

Section 11.065 was adopted in 2003 as Senate Bill 6882, preceding the 2007 addition of subsection 11.059 (e). As introduced, Senate Bill 688 did not include the phrase "that may be adopted under general law by any other school district" in Subsection (d). That phrase was added by the House Public Education Committee3 and remained unchanged through final adoption.

The opinion requested is whether DISD may, under the provisions of Section 11.065, Texas Education Code, or any other law, change the term served by a member of the board of trustees after December 31, 2007. The opinion request from the DISD board member represents.that the DISD board has voted to change the length, of its terms from' - three to four years. The trustees' action has been reported to also postpone elections previously scheduled for May, 2009 to November, 2010.

Thank you for your consideration of this request. Should you need any additional information, please feel free to contact me or David Anderson, General Counsel, at (512) 463-9720.

Sincerely,

Robert Scott
Commissioner of Education
RS/da/ds

Trustee Price and Board President sink 'Confidence Vote'

On October 30, 2008, Trustees Ron Price, Lew Blackburn and Carla Ranger submitted a written request to the Board President Jack Lowe to call a "Confidence Vote" Special Board Meeting relating to the performance of the Superintendent.

Twice in the month of November, I brought this issue up to the Board President at Board meetings. Trustee Price said nothing.

The Board President refused to call the 'Special Meeting' as required by Board policy from October 30 to December 11, 2008.

Yesterday, the Dallas Morning News reported:

"Also on Wednesday, Mr. Price dropped a request for the school board to hold a vote of confidence in Dr. Hinojosa." ... Further, Mr. Price said he no longer needs the vote since he has given his opinion."

The Dallas Morning News education blog stated:

"Board President Jack Lowe didn't attend the news conference but listened to it in DISD spokesman Jon Dahlander's office. Mr. Lowe said he called Mr. Price after the meeting and confirmed that Mr. Price is no longer asking for the confidence vote."

"Mr. Lowe, a supporter of Dr. Hinojosa's, said he confirmed with Mr. Price that he no longer seeks the confidence vote and said he's happy with his decision."

As one of the three Trustees who signed the request for the "Confidence Vote", I would have appreciated being informed before the public sinking of the boat.

It was on TV. I was never told it was coming.

The truth is, there was more reason than ever for a "Confidence Vote."

But that effort was wasted because the Board President violated Board policy by refusing to call the meeting requested by three Trustees.

Finally, Trustee Price put a hole in the boat and left it sinking in the water.

Texas Education Commissioner Requests Attorney General Opinion on Legality of Dallas ISD Four-Year Trustee Terms

At the request of Trustee Carla Ranger, Texas Education Commissioner, Robert Scott is requesting an opinion from the Texas Attorney General on the legality of the Dallas ISD Board's extending Board terms to four years and canceling the May, 2009 Trustee election.

I made this request in the hope that the action of Dallas ISD in adopting a Resolution and Board Policy on Thursday, November 20, 2008 would be reviewed by state officials and an official decision reached.

That will now be done, and the accountability of the Dallas ISD Trustees for this action will be determined.

The Board of Trustees and the District legal staff refused to obtain state clarification before rushing to take this action in order to prevent the May, 2009 Trustee elections.

The public interest will be served by obtaining state review.

The TEA Attorney General Opinion request states: "We have understood Subsection 11.059 (e) to authorize boards of trustees to change the length of their terms only until December 31, 2007."

This confirms that both the Secretary of State and the Texas Education Agency consider the Dallas ISD action to be a violation of the Texas Education Code.

Our thanks to Commissioner Scott's office for requesting the clarification.

The Question: The opinion requested is whether DISD may, under the provisions of Section 11.065, Texas Education Code, or any other law, change the term served by a member of the board of trustees after December 31, 2007. The opinion request from the DISD board member represents that the DISD board has voted to change the length of its terms from three to four years. The trustees' action has been reported to also postpone elections previously scheduled for May, 2009 to November, 2010?

The November 20, 2008 change of Trustee terms to four years certainly appears to violate the December 31, 2007 deadline of the Texas Education Code - as the legal division of the Secretary of State's Office previously confirmed.

We must now also file official objections with the U.S. Department of Justice based on the potential violation of the Texas Education Code Section 11.059(e) December 31, 2007 deadline and other related objections to canceling the Scheduled May, 2009 Trustee election.

More - Click Here - Submission of Term Plans to U.S. Department of Justice Per Senate Bill 670

Confidence Vote Discussion - Board President Again Refuses to Call the 'Special Meeting' Required by Board Policy

November 20, 2008 Board Meeting 5:30 P.M.

A part of the Board discussion is contained below.
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President Jack Lowe: We will begin with the Superintendent of Schools Report.

Trustee Carla Ranger: Before you begin the meeting, I have two Points of Order.

As you know, the District operates by policy. ... 3 or 4 weeks ago, three trustees submitted a request to you about a Confidence Vote. We haven't received a response to that.

Lowe: That's not on the agenda, Ms. Ranger.

Ranger: This is a Point of Order. I'm not asking for a discussion.

Lowe: Let me ask the Parliamentarian that we just referred to.

Ranger: This is not for discussion. I am making a Point of Order about a continuing infraction of a rule or a policy. I am asking a question about ...

Lowe: You are out of order.

Ranger: Well, I appeal the ruling of the Chair.

Lowe: OK, who are you going to appeal it to?

Ranger: The full Board.

Lowe: OK. How do you do that, Ms. Parliamentarian?

Ranger: What I'm saying is, We need an answer, Mr. President.

Jack Elrod (General Counsel): I would not suggest voting on this. This is a matter of law.

Lowe: OK.

Lowe (calls for reports): Superintendent's Report.

(Superintendent gives report.)

Ranger: Point of Order, Mr. President. I must make this point -- it has to do with the continued violation of policy.

The point is ... if the president violates policy, disrespects Board members when they ask a question, states that it is not on the Agenda--corroborated by the staff--yet, the president controls the Agenda-- and will not put the item on the Agenda.

How is it that a Trustee representing a district of more than 112,000 people -- how does that Trustee ever have the opportunity to discuss with you, with this Board or for the public or her district, any question?

Trustee Edwin Flores(interrupts to give the Education Report): Thank you, Mr. President.

Ranger: I have the floor, Trustee Flores, and I asked the President a question.

Ranger (to President Lowe): I would hope that as BF Local was written in expectation that the President would follow policy, I would hope that you would at least answer.

Lowe: I will follow policy.

Ranger: Well, the policy is not being followed. BE Local is not being followed ...

BE Local states:

'The president of the board "shall call a special meeting ... at the written request of three board members."

Lowe: I've noted your comments.

Ranger: I don't want you to note them. I want you to answer my question.

Lowe: I'm not going to do it.

Ranger: You are not going to answer the question? You are ignoring a Trustee? We are all equal here.

Lowe: We are not posted to discuss this. I'm not going to do it. I'm not going to violate the Open Meetings Act.

Ranger: You are already violating policy. I asked a question.

I just want you to note, and I want it to be noted in the record that I have asked you a question about BE Local, which you are violating (and) BF Local which you have for the last 3 1/2 weeks.

I would like an answer as a Trustee who followed policy. I made a request. I want an answer for me, for my district and for the people who support Dallas ISD.

Lowe: OK. We have that in the record. Now calls on Trustee Flores for Education report.

Meeting continues.
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The same request had been made at the November 6, 2008 Board Briefing two weeks earlier.

No other Trustee spoke during either of the two November Board efforts to obtain a response from the Board President.

The District General Counsel interrupted a Trustee's parliamentary appeal to the full Board stating it was a matter of law.

Robert's Rules of Order clearly allows an appeal from any decision of the President to the full Board. There is no basis for denying the appeal.

So the General Counsel decided it was a matter of law. But there is no law that prevents a parliamentary appeal of a Board President's decision.

Student Leaders Greet Elected Officials

Student leaders from Dallas, Desoto, and Lancaster ISDs, as well as A.W. Brown Charter School were standing tall last night as they received well deserved community recognition.

All were guests at The 13th Annual Elected Officials/Student Advisory Committee Reception, hosted by Senator Royce West, sponsor of the Dr. Emmett J. Conrad Student Advisory Committee.

In addition to a "formal" evening with fun and food, the objective of the reception was specific--it was a time for meeting, mingling and mentoring. Student Government leaders from high school and middle school had opportunities to speak with more than three dozen city, county and state elected officials.

In a brief keynote address, Dallas County District Attorney Craig Watkins encouraged students to stay focused and work to achieve their goals.

Along with their students, parents and school sponsors were all smiles.

We were entertained by several talented groups including: the Booker T. Washington High school Vocal Ensemble and String Orchestra, The Edwards Brothers (Michael andJoshua), the Middle College High School Latin Dancers, A. W. Brown Golden Sigma steppers.

During the program several schools were recognized for outstanding partcipation in a recent Food Drive. Congratulations to all for helping and serving. Great job, Kimball Knights!

Meeting student leaders and honoring schools-- a great way to start the holiday season!

Thousands of Language Arts Teachers at 98th NCTE Conference

We had a productive time attending the NCTE convention.

More teachers than beautiful tiny lights along the Riverwalk were turned on recently in historic San Antonio. They gathered for the annual meeting of the National Council of Teachers of English (NCTE), in association with the Texas Council of Teachers of English Language Arts.

From as far away as Europe and Asia and as close as surrounding Texas towns, participants came to reflect on, discuss, question and create ways to arm students with 21st century literacy skills. NCTE, 50,000 members worldwide, is dedicated to improving the teaching and learning of English and the language arts at all levels of education.

The keynote, focusing on developing the literacy skills of young learners, featured a popular, world-wide authority who stood out. His color had a lot to do with it.

It was Grover the Muppet-- adorable friend of children and (yes, I proudly confess) mothers alike. Grover gave wisdom and tips, spiced with humor and care. There were hundreds of speakers and presenters, generous with professional and instructional insight and materials.

Dr. Jerrie Scott, The University of Memphis, and I were co-presenters and facilitators of the interactive session, Shifting Literacies in the Making of a Tradition: Lessons From 20 Years of African American Read-In Events. There, a diverse group of teachers, along with public school and college administrators, signed up to be part of the 2009 read-in chain and literacy events.

NCTE educators were happy to connect and make new acquaintances, but the absence of laughter and conversations of colleagues no longer with us made us sad. The NCTE "In Memoriam" for members who passed during the last year is copied below.

In Memoriam
(12/1/2007--0/29/2008)

Most teachers pass away as they have lived, quietly, but with deep effect upon those to whom they are closest. They are mourned and celebrated by their families and students, privately, often without public announcement of their loss. The profession and the world feel the loss of every individual who has spent so much of a life's energy giving, to students, to the future, whether or not we can list them by name. ... We will miss them.

Mercedes Bonner and Delores Straker, we miss you.

Next year NCTE members and affiliates will meet in Philadelphia.