Oral argument request granted

The request for oral argument prior to the Kansas State Board of Education’s (KSBE) decision on the USD No. 115 Nemaha Central’s land transfer petition has been granted after an 8-0 vote. This decision came after the KSBE was served with a petition for additional oral argument during their May meeting.

The petition for oral argument was requested by USD No. 115 attorney Josh Ney on Tuesday, May 14. In the petition, Ney requested that both Nemaha Central USD No. 115 and Prairie Hills USD No. 113 get the opportunity to speak directly to the KSBE board members after hearing officer Scott Gordon released his recommendation on how the board should respond to the land transfer petition, which was filed Thursday, Feb. 15.

Following this request, the KSBE held a special meeting at 10 a.m. Friday, May 24, to consider the request. Present for the meeting were board members Dennis Hershberger, Cathy Hopkins, Deena Horst, Melanie Haas, Ann Mah, Jim Porter, Danny Zeck and Betty Arnold. Also present were the board’s legal counsel Mark Ferguson, Board Secretary Deborah Bremer and Kansas Commissioner of Education Randy Watson. Not present for the meeting were board members Jim McNiece and Michelle Dombrosky.

Discussion

Chair Haas opened the meeting explaining what was being required of the board during this special meeting.

“We have one item on the agenda and that is to consider the request of USD 113 and USD 115 for the June State Board of Education meeting,” Haas said. “During our monthly meeting on May 14th — during public open forum in the board room — the state was served with a petition for oral argument by USD 115 Nemaha. We are here today to decide whether to allow that oral argument after we receive the decision from the hearing officer [Scott Gordon] regarding Nemaha’s petition for transfer of territory.”

Chair Haas updated the board on the public hearing that was conducted in Bern on Friday, March 22.

“There is 3-1/2 hours of video and that is expected to be available to the board on May 30,” she said. “So today, we have an opportunity to discuss whether or not we want to grant this petition. I want to point out that on the 30th when we receive the report from the hearing officer, we will get a data dump of a lot more information than what we have right now. Up until this point, we have not had access to the video or any of the documents from that meeting in Bern. So, it is the responsibility of the hearing officer that data will be delivered and not just the hearing officer’s recommendation, but also the 3-1/2 hours of video that was the hearing as well as the presentation.”

Chair Haas also said that after reviewing all of the information, during the June meeting, the board will have the chance to accept the hearing officer’s recommendation or make changes to the recommendation.

“Similar to how we would do a PPC case, where you have the Professional Practices Committee (PPC), which meets and reviews a case, then they bring us their findings and recommendations and the board would often vote up or down, but sometimes we do make changes,” Chair Haas said. “So in this case, if we were to make changes, it would similarly be our job to justify whatever decision we make in this outcome. Mark [Ferguson] can assist us with that. So in this instance, Mark Ferguson is counsel for our board and Scott Gordon serves as counsel for KSDE.”

Ferguson echoed that Gordon’s report and recommendation will be made available to the board and the public with all of the supporting documents on May 30, hopefully. This information should include a link to the public hearing that was conducted, all of the pleadings that were provided by the parties, as well as several hundred letters from patrons.

“All of the information, which is referred as a data dump, will be made available to the board and to the general public at the same time whenever that board packet is published,” Ferguson said.

Chair Haas asked Ferguson to share what the statute says and what the board’s responsibility is, as well as how the public hearing in Bern was handled by a statute and how this relates to this request.

Ferguson reviewed K.S.A. 72-532 with the board about what the statute says about their responsibility.

“The board is the ultimate decider in this land transfer petition,” Ferguson said. “The statute, the board rules, allow the board to appoint hearing officers, because a hearing officer can gather that information and conduct hearings. So in this case, the board appointed a hearing officer to go out and gather that information and bring it back. It doesn’t replace the board’s ultimate authority. Ultimately, it stops with you and you will either approve, disapprove, or approve with amendments that you deem to be appropriate. My job would be to help put together a final order that the language of the order would match the decision of the board and carry out the board’s intent.”

Chair Haas noted that the board was provided with no recommendation on how to proceed with this request in their packet.

“This is very much a will of the board discussion and conversation,” she said.

Mah asked for Ferguson’s interpretation of the legal aspects of the petition and the response.

“Were they correct on the law and would there be a break in precedence if we did allow the oral arguments?” Mah said.

Before answering Mah’s question, Ferguson clarified that while the board would meet on Tuesday and Wednesday, June 11 and 12, the oral argument would not need to take place during that meeting.

“While the normal board schedule is on Tuesday, the request of the petitioner is simply that an oral argument occurs sometime between when that [the hearing officer’s recommendation] is issued and when you make your decision. So, it’s completely up to the will of the board, but it could occur at a special meeting or it could occur some other time between the time it is issued on May 30th and the time that you vote. It could be altered slightly.”

Then, Ferguson answered Mah’s question.

“Other than the argument and the persuasive request that the motions had with regard to the need for an argument, I’m not taking a position on that, but you asked two parts,” Ferguson said. “One is yes, they cited the law in terms that the constitutional authority of the board — the statutory authority of the board — both of the briefs explained that the board has the authority to appoint a hearing officer, and so it went through the four or five fundamental steps about what’s the law in this area. I don’t believe that providing a hearing [oral argument] would be some inappropriate departure of precedent.

“One way or the other, I don’t think it’s going to be a situation where you have to grant oral argument in all of them, but I would also say in balance that there is nothing in the statute that you have to provide oral argument or grant the request. I don’t think it is going to provide you… Either way you go, in my opinion, it’s not going to change or put the board at legal risk, because when I look at it, I’m more focused on what is the due process in the hearing and what is the universe of information that you have.”

Ferguson added that it’s the “will of the board” to grant an additional step to provide oral argument in that process that is within their discretion.

“You are being asked to make a decision, in a vacuum perhaps, described as the cart before the horse, because you’re considering whether or not someone giving oral argument, without having the benefit of all of this what I’m describing as a universe of information. So, today you are being asked, should we grant oral argument to supplement the universe of information, and that is up to you.”

Hopkins asked if this would be considered a “closing statement” when looking at a trial case in court. Ferguson confirmed that these oral arguments would be similar to a closing statement.

“In a trial, an opening statement would be a prediction of what you are going to hear in the evidence at the trial,” Ferguson said. “A closing argument [statement] is a summation or a persuasive argument – it is an argument because you are using information that came out during the trial. If you apply that analogy to this situation, I think it is more appropriate to call it a closing argument, because they are going to refer and emphasize evidence that they believe to be important to their case. It is described generically as an oral argument, but if you were to insert that into the trial context, it’s probably a closing argument.”

Zeck spoke up, saying he felt like oral argument should be allowed.

“These two school districts are huge rivalries,” Zeck said. “Since they asked to come in front of the board, I would like to see them have oral arguments. Then, we got a lot of negative emails about Scott [Gordon] being the hearing officer, which that’s fine. I have no problem with him being the hearing officer, but I am one of those ones who like to let people have their voice. If we cut them off, I don’t feel comfortable with that, personally. It doesn’t matter how we vote, they got to come in front of the board and see eyeball to eyeball with each person.”

Horst agreed with Zeck, saying the board should “give them an opportunity one more time” to say what they want to say and let the board hear both parties.

“Since we were making an analogy to Professional Practices Commission and the decisions we make after they’ve made a decision, I wondered if to some extent, this argument isn’t sort of like a person that comes before the [Professional] Practices Commission with their license on the line, so to speak,” Horst said. “They are arguing their point and so to me, it’s much the same kind of thing from that regard, so it’s one last time for them to make sure we’ve heard what they want to say. So from that point of view, it seems appropriate to me to allow that type of interchange.”

Hershberger said three things come to light when reading the petitions and the responses.

“[It] has to do with distance and transportation, representation of local board and taxation,” Hershberger said. “I look at, if the boundaries would change those three things, it just makes sense to me that we allow hearings from somebody to represent. It just seems like the American way to do things. I know there was a lot of time put in at the hearing in Bern, but I think it’s only a democratic process that we need to consider this morning.”

Mah said all of the previous comments were good and that she didn’t have strong feelings one way or another.

“I think if you think things are not going your way, it is not uncommon to complain about how it was all done, and we know our hearing officer and know the quality of the work he does and I will be anxious to see it,” Mah said. “I guess my question again is for Mark [Ferguson]. Whatever we do in June is going to make somebody unhappy, and I suspect there will be an appeal either way. What would that process look like?”

Ferguson responded, saying he was mostly concerned with due process.

“The only thing I’m really concerned about is the legal challenge to lack of due process that someone might have,” Ferguson said. “That is why I was focusing on all of the steps that lead up to the decision and there’s two components to due process that are important, and that is notice and opportunity to be heard. So my legal position is that there is no lack of due process by not providing an opportunity to provide oral argument before you make a decision. That is a legal position, because I think there has been some sufficient notice, opportunity to be heard all along the way or at various times and it complies with the statute, so I’m not concerned about that.”

“The components that you’re raising are certainly within your purview to consider as the state board, but my role is to make sure that that request regardless of how you vote would withstand a legal challenge to that specific request,” Ferguson continued. “You asked if the unhappy party wants to challenge that, once again using the analogy of the PPC, is it would be an appeal to the district court to reconsider the decision of the board. I think there would be great deference to the decision that the board would make and that would be our objective in making that decision whatever that decision might be justified based upon the entirety of the record.

“So, when I talk about the record, I am talking about all of the information leading up to this universe of information that you are going to rely on. I am not of the opinion that the absence of an oral argument is going to change the record. The record appears to be very comprehensive. You will have it and you will have all the information you need to make an informed decision. I’m trying to paint a big picture because you don’t know what you don’t know. You haven’t even been presented with the recommendation of the hearing officer, so you’re being asked to make a policy choice in a vacuum without knowing who might be the unhappy party.”

“It really is the cart before the horse, but I’m wondering if we did have a hearing [oral argument for both sides], could that preclude or eliminate one more argument on appeal, like ‘we did everything we could?’” Mah said.

“It could eliminate, but I’m telling you publicly that just because they have one more oral argument at this stage, I don’t think that strengthens their basis for appeal, but that’s my opinion,” Ferguson said. “A district court might disagree. Since you’re asking that question, I think it’s worth putting into the public just stating the obvious that you’re all assembled here in a special meeting, which is very rare, and you’re giving this due consideration. So, while this might be perceived as a self-serving comment on behalf of the board, this was not scheduled.

“You’ve got board members that were spread literally around the world and you have taken a Friday to give careful and thoughtful consideration to this issue. So, I don’t think that even if you decided against them, it is pretty clear from the deliberation, the thought and the time that has been put into this specific request that you’re giving it careful thought and deliberation. In my opinion, that’s what the board is obligated to do. The board is not obligated to necessarily grant the request, but give it good consideration.”

Arnold said that as elected board members, she felt like their constituents should be heard.

“Regardless how we end up voting, our constituents like to know that we are willing to at least hear them,” Arnold said. “It seems like that’s basically what this request is – let us, in an oral argument, present our final statement. It may or may not change anything. They want to be heard and as an elected person, I’ve never had a problem with listening and hearing.”

Then, Arnold made a motion to grant the oral argument request.

Chair Haas asked Ferguson if it would be possible for the board to “readily” reconvene for a special meeting after receiving the packet of information and recommendation by Gordon.

“I don’t know if ‘readily,’ because you have 10 members and the administration gathering together, but it is an option simply because I know how challenging it is putting the board together and having speakers and all of that,” Ferguson said. “That is probably better question for our commissioner in terms of scheduling and opportunity, you also have board members traveling internationally, so I’m not 100 percent sure of their travel schedule, but the specific answer is I don’t believe that the oral argument has to be on that Tuesday. I think that’s maybe the presumption, but if you wanted to do something different, I think they are really just requesting the opportunity between the issuance of the written recommendation the hearing officer, which would be by next week and prior to your decision or your vote, given of course that they may want to follow Scott Gordon’s presentation on Tuesday. It’s not the way it has to be.”

Porter said that if this were a debate subject, he could argue either side of it.

“The first idea is that we have a precedent and a procedure that has been followed. The second is that we have been asked to hear additional information,” Porter said. “I have given this a great deal of thought and I always want to err on the side of transparency. I see no downside in to listening even though it may not change our discussion. There are unintended consequences to everything that we do. This has nothing to do with this motion, but when we come to board meeting, if 100 people show up to our open forum, we are going to have to limit that, because we won’t have time to do that and if you look at the agenda, Frank Harwood has to talk to us on Tuesday morning because he has to leave and that is something we have to do. So, we have to be prepared for the first time in the 10 years I’ve been on the board, that the possibility that we will have to limit times for open forums. I think we will need to be aware of that. All that being said, I second Betty’s [Arnold] motion.”

Chair Haas asked about when the oral argument would take place and how the format would look.

“I would assume when granting the petitioner’s request for oral argument that would include 30 minutes for each one because that was the request,” Watson said. “So that’s my assumption with the motion she made. How we would work through how to incorporate that into your June meeting, because that’s the dates that we feel fairly confident that most people can be in attendance. That would be our plan.”

Hopkins asked if the vote had to take place on Wednesday, June 12.

“You have to take a vote prior to July 1 of the next school year, so both school districts know what that decision is and make appropriate decisions related to the next school year,” Watson said. “So by the end of June, you would need to have a vote on that. You could postpone it. I will leave that up to Mark as to procedurally when that vote would have to be taken, but I think it would have to be taken by the end of June.”

“The statute says within 90 days after public hearing,” Ferguson said. “I would have to get the exact date from the public hearing date.”

Zeck asked if the board wanted Gordon to do his presentation on Tuesday and USD 113 and USD 115 give their oral arguments on Wednesday, or if the board wanted both things to happen on Tuesday.

“I think that we want to do that on Tuesday and we will just have to figure out how to work it into the agenda, if that is the will of the board, because we need to have overnight,” Chair Haas said. “You all are great at going through the packet and doing all of the reading, so I want to make sure that we have overnight to at least finish reviewing that information.”

While they asked for 30 minutes, do we have to give them 30 minutes or can we pare that down in timing?” Hopkins asked.

“It sounds like the motion we have on the table is to grant the request as it was written in the request,” Chair Haas said “So it is 30 minutes as written [for each side]. One could make an amendment to the motion.”

Porter suggested that the board gives them “what they asked for.”

Zeck agreed with Porter.

“We are all here voluntarily, we just take an extra hour that day,” Porter said.

Then, the board voted unanimously to grant the oral argument request.

As of Tuesday, May 28, the exact time and date of the oral argument had not been set.

Heather Stewart100 Posts

Heather Stewart is one of two co-editors for The Sabetha Herald, where she has been on staff since 2015. Heather is a 2011 Kansas State University graduate with a degree in psychology. She lives in Sabetha with her husband.

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