What's It All About, Tichi?

I practically did a spit-take when I read the news that Tichi Pinkney-Eppes, the 9th-District Richmond Public School (RPS) School Board member, may have violated the confidentiality of at least 20 RPS students when she attempted -- without prior parental consent -- to share private information from their files with a third-party Medicaid vendor.  

I have known the current 9th-District member of the City of Richmond Public School Board longer than I have known any of her other school board colleagues. And while Pinkney-Eppes and I have had differences on issues over the years, our common ground has always been that we are willing to fight as hard as humanly possible to help all children in Richmond get the best education possible.

That said, I confess that I have given up trying to understand some of Pinkney-Eppes' actions since becoming an RPS School Board member in 2012.  Remember when she endorsed Ken Cuccinelli and later that same week declared bankruptcy? Remember how the Cuccinelli campaign stood by her?  
Who can forget the awful  kerfuffle in City Hall basement when she and 6th-District member, (Not Dr.) Shonda Harris-Muhammed, reportedly threatened to "whoop" 2nd-District School Board member Kim B. Gray's "ass"?

This latest incident cannot be ignored.  


Given the potentially serious consequences for violating confidential academic, disciplinary and (in some cases) medical records of students -- a loss of federal funding, imposition of fines and penalties up to $1.5 million as well as the possibility of criminal prosecution and jail time -- the members of the School Board and Supt. Dana Bedden are doing the smart thing by calling for an investigation.

Click here to see for yourself how serious the possible consequences of  violating the Family Educational Rights and Privacy Act (FERPA) and Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule related to the use and disclosure of confidential information could be.  

Click here  to see what the consequences could be for violating HIPAA confidentiality and releasing medical information  about a student without prior consent of parents or guardians.

In an effort to be fair and not rely upon hearsay or accounts from other journalists, I called Pinkney-Eppes and asked her to help me understand what was going on.  She said she thought her colleagues were "trying to undermine and discredit" her.  

I asked if it was true that she told her board members that she not only discussed confidential information over the telephone but also drove to the third party medicaid vendor's office and tried to open the confidential files there?


She refused to give a direct answer.  Instead, she took great umbrage with the question and said she was "shocked" that other School Board members would violate "closed session" and speak publicly about the allegations and investigations discussed therein.  She accused them of playing politics with her and likened their release of a statement as "political grandstanding."  


I asked (again) if it was true that she told her colleagues that she discussed the student's record over the telephone with the vendor and then drove to the vendor's office ?  She (again) refused to answer and repeatedly said: "I have done nothing nefarious or intentional."  


In response to that comment, I asked how she (or anyone) could view driving to the vendor's office and attempting to open the files there as somehow "unintentional?" Silence.

Finally, I asked her to imagine how she would respond if someone were to share her child's (or grandchild's) academic, discipline and medical records with a third party without her prior consent.  

Again, she refused to answer.  

Enough said (or not said).  The RPS School Board and Supt. Dana Bedden are to be commended for taking swift action on this matter and publicly calling for an investigation.  


Pinkney-Eppes needs to stop playing the victim in the drama she created, take responsibility for her actions and stop blaming her colleagues and RPS Superintendent Bedden,  for acting in the best interests of the school system.   

Text of statement School Board issued upon learning of the breach of student records by Pinkney-Eppes:

"On October 6, 2014, the Board was informed of a breach of confidential student information by Board Member Tichi Pinkney Eppes. We are very concerned about this breach of information and do not condone this action. We are working closely with RPS administration to gather the details of the breach. At the current time, we estimate that approximately 20 student records were compromised. We are dedicated to fully investigating this matter to ensure that all student records are held to the highest state and federal standards of confidentiality. We will continue to keep all stakeholders updated on this issue as public information becomes available. Parents of the affected students can expect to receive written notification this week from RPS administration and are encouraged to contact the Department of Academic Services at (804) 780-7700 if there are additional questions or concerns."

High Stakes Test Tonight ...

Advice to School Board:  WALK TALL

SCAPEGOAT OR HARBINGER OF PROGRESS?


The Times-Dispatch reports that the principal at G.H. Reid Elementary School has been recommended for demotion because of the performance at his school: In the past two years Reid has plunged into “priority” status among the lowest-performing 5% of Title I schools in the state.  Reid is one of twelve “priority” schools in Richmond (which has 1/3 of the priority schools in the state this year).
At first glance this seems terribly unfair: Richmond, under the “leadership” of Yvonne Brandon, did not update its curriculum to reflect the new math SOL tests in 2012 or the new reading tests in 2013.  So we have to wonder whether the principal is being singled out for participating in a general failure.
A glance at the numbers from VDOE’s handy Build-A-Table front end to their database suggests otherwise.
First, Reid participated in the general plummet on the math tests in 2012.  In the following two years, however, the division recovered slightly while Reid continued to slide (to a 37.3% pass rate!).
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(Reid* scores are reported separately for 2006 and ‘07, presumably before some kind of redistricting.)  This looks even worse when we notice that Reid was performing well above the Richmond average until after 2012.
The pass rates on the Reading tests show a similar pattern, with the Reid pass rate dropping to 36.6% (!) this year:
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Next, the database sheds some light on Reid’s performance vs. the other priority elementary schools.  First the math tests:
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Based on the math scores, I’d like to know whether the Woodville principal is being similarly demoted and where the Oak Grove and Blackwell principals stand.
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Looking at the Reading scores, I’d add the principals at Oak Grove and Woodville to the short list.
I’d like another datum: Have these three principals been in the saddle for three years or more?  If so, their failures are on their own watches and I’ll think it time for some accountability.  
Thus, we’ll need information about tenures and  these other principals before we can decide whether it’s time to praise our new Superintendent for bringing accountability to our schools for the first time in recent memory.  But the Reid situation may be cause for some hope.
Note added on Oct. 6:  This morning I found Reid’s School Improvement Plan in the documents for the 10/6 School Board meeting.  
  • Item 3 under “Essential Actions” is “Create division lesson plan template.”  Surely that must mean “school” lesson plan; there is no way Reid can create a “division” lesson plan.
  • Item 4 makes more sense: “Use RPS template to create lesson plans . . . .”
We know from the Channel 12 story that the new RPS administration created a new curriculum last summer, put it on the Web, and held workshops for teachers.  If it is true, as this Plan suggests, that Reid still has not aligned its lesson plans to that curriculum, then for sure it’s time for a new principal.
Further Note on Oct. 6: It turns out there is some history on principal replacement.  A VDOE document reports that the principal at Ginter Park was replaced in ‘12, Blackwell in ‘13, and Oak Grove in ‘14.  I’ve modified the graphs above to add red circles to show the year of replacement:
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Reid and Woodville were not designated “priority” until this year.
On these limited data, it looks like the replacement at Ginter Park is producing results (altho it appears that GP was not a priority school until 2013) and it’s early to draw conclusions about the other two schools.

Many Thanks to Style Weekly for Publishing This !

Gag Me 


Opinion: The idea that an employment contract for the highest-ranking city official can be shielded from taxpayers because it is a “personnel matter” is ethically offensive.

back39_gag_me.jpg
Mayor Dwight C. Jones and the city's recently departed chief administrative officer, Byron C. Marshall, must think the people of Richmond are a bunch of fools. Why else would they attempt to hide from us the details concerning Marshall's sudden departure from City Hall?
Their latest gambit was to ask City Council members to sign confidentiality agreements in order to find out why Marshall is no longer in City Hall.
It's only the most recent example of Richmond's near-pathological addiction to secrecy, an addiction that's as corrosive to regional efforts at working together for the greater good as it is to building trust in our elected officials. They should know better.
Clearly, preacher Jones needs to spend more time reading his Bible, especially Luke 12:12 (King James Version): "For there is nothing covered, that shall not be revealed; neither hid, that shall not be known."
And Marshall, who has a bachelor's degree in history, must need a refresher lesson on how things turned out when former President Richard M. Nixon attempted to gag the media from reporting on the Pentagon Papers and to keep from turning over those White House tapes, to those "nattering nabobs of negativism," as former Vice President Spiro Agnew described reporters just before he left office in disgrace.
More's the pity for our city then that only four of nine City Council members — Jon Baliles of the 1st District, Chris Hilbert of the 3rd, Parker Agelasto of the 5th and Reva Trammell of the 8th — had the good sense to refuse to sign away their constituents' right to know what the real deal is concerning Marshall's sudden departure from City Hall.
What in the world makes them think they can require elected officials to sign a confidentiality agreement in order for them to do their fiduciary duty? And what's next? A loyalty oath?
Besides, does the mayor really think this foolish piece of paper somehow is enforceable? If a council member signs and then talks, an injunction to not talk won't accomplish anything. So would the mayor sue for damages? It's difficult to believe his tattered administration or reputation is worth much at this stage.
When this news was first reported Sept. 15, I filed a Freedom of Information Act request. Two days later, the mayor's press secretary, Tammy Hawley, and City Attorney Allen Jackson informed me that the documents I requested were either "attorney-client privileged or personnel records" and therefore "shielded" from FOI law.
Both notions are even sillier than the mayor's so-called confidentiality agreement, which essentially is a gag order.
Hoping to persuade them to reconsider their refusal to release the information, I sent a follow-up email. It said, in part:
"It is absurd to say that an agreement is an attorney-client privileged communication because it was prepared by a lawyer. If that were all it took to preclude disclosure of the document, then most contracts wouldn't be discoverable because almost all of them are prepared by lawyers and then communicated to their clients.
However, your stated rationale for refusing to provide even an unsigned copy of the so-called confidentiality agreement and a list of the City Council members who signed it (or did not sign it), raises the question of just who is the client in this matter.
Clearly, the client is not City Council members, individually nor collectively, since they did not ask counsel to prepare such a document prior to learning (or not learning) the details of Mr. Marshall's departure from City Hall and the terms of his buyout package.
Consequently, this document and the information contained therein have already been disclosed to "non-clients." As I am sure you are aware, Mr. Jackson, disclosure to a third party constitutes a waiver of attorney-client privilege.
The idea that the terms of an executive's employment contract — in fact, the highest-ranking official in Richmond government — can be shielded from the public and taxpayers because it is a personnel matter is ethically offensive. This logic might work in private business, but it has no place in public policy. If the details of employment and the details of the departure from public employment can be shielded, the city could enter into outrageous contracts and never need to reveal what's happening to public money.
Recall the case of what happened in Bell, Calif. The Los Angeles Times won a Pulitzer Prize for its investigations into what was dubbed "Corruption on Steroids," a scandal about a small city "whose leaders paid themselves outsized salaries."
I hope you know that I have no personal issue with either of you. I know you are simply trying to do your jobs. Having served as an elected official and as a journalist, I know there are dedicated individuals in government who are truly public servants doing their utmost to safeguard the public's money and trust. I hope that you will reconsider your decision.
And Mr. Jackson, I ask that you recognize that the public offices — and not the people who occupy them — as well as the residents of Richmond are your real clients."
As Claire Guthrie GastaƱaga, a former deputy attorney general and current executive director of the American Civil Liberties Union of Virginia astutely put it: "In a democracy people should know more about the government than the government knows about us."
How did they reply? I'm still waiting. And despite numerous efforts to reach him, Charles Samuels — 2nd District City Council member, City Council president, a lawyer and one of the members who signed the confidentiality agreement — didn't respond by deadline.
Make no mistake. In this case, our rights to know what our government is doing — in our names and with our tax dollars — will prevail. S
------
Carol A.O. Wolf is a former newspaper reporter who served on the Richmond School Board from 2002-2008. 

Great Minds ......Confidentially Speaking

On Wednesday [9/17] and again on Thursday [9/18],  I pointed out -- in e-mails to Richmond City Press Secretary Tammy Hawley and to City Attorney Allen Jackson, various postings on FaceBook and on this blog -- that Mayor Dwight C. Jones' excuses for not releasing the "confidentiality agreements" he is demanding Richmond City Council members sign in order to be briefed about the CAO's Byron C. Marshall's abrupt departure are bogus: 

" ..... It is absurd to say that an agreement is an attorney-client privileged communication because it was prepared by a lawyer.  If that is all it takes to preclude disclosure of the document, then no contract would be discoverable because they are almost all prepared by lawyers and then communicated to their client."
  • However, your stated rationale for refusing to provide even an unsigned copy of the so-called Confidentiality Agreement and a list of the City Council members who signed it (or did not sign it), raises the question of just who is the client in this matter.
  • Clearly, the client is NOT City Council members individually nor collectively since they did not ask counsel to prepare such a document prior to learning (or not learning) the details of Mr. Marshall's departure from Richmond City Hall and the terms of his buyout package.
  • "Consequently, this document and the information contained therein has already been disclosed to "non-clients."  As I am sure you are aware, Mr. Jackson, disclosure to a third party constitutes a waiver of attorney-client privilege.
  • "The idea that the terms of an executive's employment contract -- in fact, the highest ranking official in Richmond City government -- can be shielded from the public and taxpayers because it is a "personnel matter" is ethically offensive.  This logic might work in private business, but it has no place in public policy.
  • "If the details of employment and the details of the departure from public employment can be shielded, the city could enter into outrageous contracts and never need to reveal what is happening to public money.  

Today [9/19] the Richmond Times-Dispatch editorial page published this brilliant editorial (excerpted here): 

" ..... That rumble you hear is the thousands of lawyers across the state laughing their guts out.   Attorney-client privilege does not mean any document drawn up by a lawyer can remain hidden from public view. It covers only a very narrow category of information: information provided (a) by a client (b) to a lawyer (c) for the purposes of obtaining legal advise and counsel. The purpose of privilege is to ensure that, for instance, a defendant in a murder case can tell his lawyer exactly what happened on that fateful night, without having to worry that what he says in confidence will be used against him in court.
What’s more, attorney-client privilege ceases to cover information that is shared with a third party. Since the members of the City Council are not the clients of the lawyer who drew up the confidentiality agreement, they qualify as third parties. So even if the confidentiality agreement had been a privileged communication, it ceased to be the moment it was presented to council members.
The claim that the agreement is a personnel record is equally ludicrous. A confidentiality agreement not to disclose a discussion about an employee is not, itself, a record regarding that employee’s performance — any more than a medical nondisclosure form contains the contents of a blood test. Indeed, it would defeat the entire purpose of a nondisclosure agreement if the agreement contained within it the information that was supposed to be kept secret.
The mayor’s insistence on concealing not only the reasons for Marshall’s departure, but also even the confidentiality agreement he asked members of the City Council to sign, does nothing but fuel suspicion. And the nonsensical reasons he has offered for the secrecy reek of desperation.
In short, this all looks very bad. It’s time for the administration to drop the nonsense and come clean."

Very bad, indeed.

You are crazy in the head.

Preacher Mayor Dwight C. Jones Needs to Read His Bible ...

"For there is nothing covered, that shall not be revealed; neither hid, that shall not be known."  

~  Luke 12:12, King James Version

Mayor Dwight C. Jones and former Richmond CAO Byron C. Marshall must think the citizens of Richmond are a bunch of fools.  I hope that after you read my e-mail correspondence with city officials this week,  you will let your elected representatives know that they need to get their backbones and brains in motion and let Hizzoner know we are not going to let him get away with this.

-----Original Message-----
From: wolfies@aol.com
To: Tammy.Hawley@Richmondgov.com, Allen.L.Jackson@Richmondgov.com
Sent: Wed, Sep 17, 2014 12:25 pm
Subject: Re: FOIA Request ...


Ms. Hawley, Mr. Jackson: 
Iis absurd to say that an agreement is an attorney-client privileged communication because it was prepared by a lawyer.  If that is all it takes to preclude disclosure of the document, then no contract would be discoverable because they are almost all prepared by lawyers and then communicated to their client.

However, your stated rationale for refusing to provide even an unsigned copy of the so-called Confidentiality Agreement and a list of the City Council members who signed it (or did not sign it), raises the question of just who is the client in this matter.  Clearly, the client is NOT City Council members individually nor collectively since they did not ask counsel to prepare such a document prior to learning (or not learning) the details of Mr. Marshall's departure from Richmond City Hall and the terms of his buyout package. 

Consequently, this document and the information contained therein has already been disclosed to "non-clients."  As I am sure you are aware, Mr. Jackson, disclosure to a third party constitutes a waiver of attorney-client privilege.

The idea that the terms of an executive's employment contract -- in fact, the highest ranking official in Richmond City government -- can be shielded from the public and taxpayers because it is a "personnel matter" is ethically offensive.  This logic might work in private business, but it has no place in public policy. If the details of employment and the details of the departure from public employment can be shielded, the city could enter into outrageous contracts and never need to reveal what is happening to public money.  Recall the case of what happened in Bell, California. (http://timelines.latimes.com/bell/).  The Los Angeles Times won a Pulitzer Prize for their investigations into what was dubbed "Corruption on Steroids," a scandal about a small city "whose leaders paid themselves outsized salaries."

I hope you know that I have no personal issue with either of you.  I know you are simply trying to do your jobs.  Having served as an elected official and as a journalist, I know there are dedicated individuals in government who are truly public servants doing their utmost to safeguard the public's money and trust.  That said, I hope that you will reconsider your decision that the documents I have requested are shielded and not subject to public disclosure. And Mr. Jackson, I ask that you recognize that the public offices -- and not the people who occupy them -- as well as the citizens of Richmond are your real clients.

Meanwhile, Ms. Hawley, I ask that you please provide a copy of the job description for CAO that was in effect prior to 2009 so I can determine what changes were made immediately prior to employing Mr. Marshall.  Additionally, the information you provided in your e-mail of Sept. 4, 2014 concerning Ken Johnson and the compensation he and his company have received from the City of Richmond was "interesting," but non-responsive to my FOIA request.  I look forward to receiving the remaining information from my Sept. 2, 2014 e-mail to your office. 

Respectfully, 
Carol A.O. Wolf
-----Original Message-----
From: Tammy.Hawley@Richmondgov.com
To: wolfies <wolfies@aol.com
Sent: Tue, Sep 16, 2014 5:35 pm
Subject: RE: FOIA Request


Hello Ms. Wolf,
In response to your FOIA request below, please be aware of the following:


1. The requested confidentiality agreements, which were executed by legal counsel and handled under the direction and advise of legal counsel are being withheld under the attorney/client privilege exemption (Va. Code § 3705.1(2)) as well as the personnel record exclusion.

2..  The document is a personnel record not subject to disclosure under the FOIA, Va. Code §§ 2.2-3705.1(1) and 2.2-3705.8(A)(i). The separation agreement itself also provides for confidentiality.

3. All such documents (however many there may be) are personnel records not subject to disclosure under the FOIA, Va. Code §§ 2.2-3705.1(1).

4.  Attached is a copy of the employment agreement and a record of compensation (real and deferred). I have also attached a reproduced copy of the job description for the position of CAO as available on the city's website.


Thanks.


From: wolfies@aol.com [mailto:wolfies@aol.com]
Sent: Monday, September 15, 2014 1:52 PM
To: Hawley, Tammy D. - OPS; Jackson, Allen L. - City Attorney
Subject: FOIA Request
Ms. Hawley: 

Please provide: 

1.)   the names of the City Council members who signed confidentiality agreements with any agent(s) or representative(s) of the City of Richmond concerning the recent resignation of Byron Marshall as CAO;
2.)   any and all documentation that provides the details of the severance package and any and all other financial agreements between Byron Marshall and any agent(s) or representative(s) of the City of Richmond;
3.)  copies of the resume and all other documents Byron Marshall originally submitted when he applied for employment with the City of Richmond and all documents submitted since that verify his education and employment history;
4.)  and copies of all employment agreement(s) between Byron Marshall with any agent(s) or representative(s) of the City of Richmond, including all addendums, job descriptions and duties, including all forms of compensation, real and deferred. 

Respectfully, 
Carol A.O. Wolf

804.972.2156
804.264.8015


THE RICHMOND LISTS

By John R. Butcher
As we have seen, even with the wholesale upward “adjustments” to the pass rates, only eleven of Richmond’s forty-five schools were fully accredited this year (with three schools yet to be determined).  Here is the list:
imageThose “adjustments” saved the bacon of five schools on the math tests:
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On the subject of pretty good high school scores, earned by wholesale dropouts of poorer students, the mainstream Richmond high schools, TJ excepted, show the effect in their awful graduation rates:
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“GCI” is VDOE’s “Graduation and Completion Index;” an 85 is required for full accreditation.

John R. Butcher Tackles the Virginia Department of Education (VDOE) in his latest "Cranky" blog posting.

FUN WITH NUMBERS

By John R. Butcher
As I discuss at length elsewhere, VDOE has a secret and byzantine process for transforming pass rates into accreditation scores that are divorced from actual performance. 
One has to wonder why they bother: They write the tests and they can make them as hard or easy as they wish.  Nonetheless, they “adjust” the scores.
They briefly outline the process here.  There’s no way to infer the algorithm from that, but we can compare the “adjusted” scores to the actual scores to get a feel for what’s going on.
Well, to a degree:  There are two English tests but they report only one “adjusted” score.  There’s no straightforward way to compare the actual to “adjusted” numbers.  But they report a single math pass rate for each school.
2013 was the second year of the new, tougher math test, so the three year running average included an old, generally higher, number that boosted many scores.
This year, all three years were under the new test, and the generally increasing math scores mostly eliminated the running average adjustment.  Thus, the “adjustments” were smaller, albeit with the same effect of increasing the number of schools that reached the 70% “adjusted” pass rate.
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The average boost was 2.8%; the maximum, 29%.
Notice how the number of schools with scores below the magic 70% decreased while the number with scores >70% increased:
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Indeed, 1245 schools scored 70% or more but, after the “adjustments,” 1372 schools made the 70% cutoff.
Caveat: VDOE reported math pass rates at fifteen schools for which they did not report “adjusted” scores; they reported “adjusted” scores for fifty schools for which they reported no pass rate.  I deleted all sixty-five of those schools from the analysis above.
This post already is too long.  I’ll do the Richmond scores tomorrow.

The Scores! A School-By-School Breakdown ...

(Bravo to John R. Butcher and his CrankyBlog for all his hard work crunching the latest SOL Scores! Check back later for more news and analysis of what City of Richmond School Board and RPS Superintendent Dana Bedden intend to do to combat these scores.)

Here is a first look at the 2014 test scores by school.  I’ve included a five year period to provide some context for the effect of the new math test in 2012 and the new reading test in 2013, both of which reduced the statewide average scores and torpedoed the Richmond scores. The tables are sorted by decreasing 2014 scores. 

First, reading.  
(Elementary, then middle, then high schools.)
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I’ve listed Richmond Alternative with the middle schools although it could as well be listed as a high school.  Here are the 2014 memberships at Alternative:
 image
Note the plunge in Alternative’s scores between ‘13 and ‘14.  Among the middle schools, note King and Henderson wrestling for last place.
I included Franklin with the high schools although it also is a middle/high school hybrid:
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It’s probably not fair to compare either of those schools directly to its listed peers.
Now, math.
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Looks like there is a fine math department 
(and a not-so-fine) English program at Marshall.