Scott Gordon recommends denial of land transfer petition

“Deny the petition.”

That is the recommendation from public hearing officer Scott Gordon. The highly anticipated recommendation was released on Thursday, June 30, when the Kansas State Board of Education’s (KSBE) June meeting agenda and information packet was released.

This decision came following a nearly four-hour public meeting — which took place Friday, March 22, in Bern — where patron testimony, statements from attorneys representing both USD No. 113 and USD No. 115, and data were presented to Gordon. In addition to the public hearing and all of the data that had been submitted prior to the hearing, approximately 200 public letters were submitted via email and in writing to Gordon.

Over the past two months, Gordon has reviewed, analyzed and compiled all of the information and made his informed recommendation based on “policies and practices of the State Board, state law or other such published guidelines.”

Gordon will present his recommendation to the KSBE during their June meeting, since a decision has to be made prior to Monday, July 1.

At 1:30 p.m. Tuesday, June 11, hearing officer Gordon, who is also the Kansas Department of Education’s Legal Counsel, will present his recommendation for the USD 115 Petition for Land Transfer.

Following Gordon’s presentation at 2:30 p.m., attorneys for Nemaha Central USD No. 115 and Prairie Hills USD No. 113 will give one hour — 30 minutes each — of oral argument. Oral argument for this case was approved by the KSBE during a special meeting on Friday, May 24.

Then, at 9:05 a.m. Wednesday, June 12, the KSBE has blocked off 1-1/2 hours during their meeting to discuss and act on Gordon’s recommendation.

“The Kansas State Board of Education guidelines are very clear about land transfers from one district to another. We respectfully urge the State Board of Education to follow their policy with fidelity, respect the democratic process, honor local control and follow Mr. Gordon’s thoughtful recommendation by voting to dismiss this land grab petition,” said Prairie Hills USD No. 113 Superintendent Todd Evans.

“Mr. Gordon has taken his administrative responsibilities seriously and has been fair by providing avenues of input and hearing concerns from all parties. He clearly understands that a ruling to reward a unilateral land transfer petition, without a significant change of circumstances, would create chaos for school districts statewide and disempower local boards of education. I am hopeful that the State Board of Education reviews his recommendation and approves it. We are all eager to get back to our primary mission of educating students,” Evans said.

Gordon’s Recommendation

Below are highlights as written from Gordon’s 13-page recommendation. Gordon’s full report along with all of the publicly released information, including letters of support or opposition to the petition as well as all legal documents submitted, can be found at

Findings of Fact

• According to the Kansas State Department of Education, USD 115’s headcount for 2023-24 was 756 students. Of those 756 students, 104 students were nonresidents of the district.

• According to the Kansas State Department of Education USD 113’s headcount for 2023-24 was 921 students. Of those 921 students, 123 students were nonresidents of the district.

• USD 115 provides transportation to out-of-district students without receiving state transportation aid to do so. USD 115 recently chose to no longer offer transportation to those in-district students that live outside of Seneca city limits but less than 2.5 miles from the school.

• State equalization aid for the supplemental general fund (LOB) is calculated based on each district’s three-year average assessed valuation per pupil (AVPP). The threshold for districts to receive LOB equalization aid is the 81.2 percentile. 11% of all Kansas districts, including USD 115, have an AVPP above the 81.2 percentile and do not receive LOB equalization aid. 89% of all Kansas districts, including USD 113 have an AVPP below the 81.2 percentile and do receive LOB equalization aid.

• Although the difference in time to travel from Bern to Seneca and Bern to Sabetha is less than 20 minutes, the majority of those who spoke during the public hearing favor traveling to Seneca and believe the roadways to be safer.

Results If Petition is Granted as Written

• Approximately 78.5 square miles of USD’s territory – taken from two separate tracts of land – will transfer from USD 113 to USD 115. The two tracts of land are labeled in USD 115’s Petition as Tract 1 (69.30 sq. miles) and Tract 2 (9.2 sq. miles).

• No territory will transfer to USD 113.

• There is no real property (school buildings of attendance) of USD 113 within the proposed territory to be transferred, so no real property will transfer to USD 115.

• USD 115 currently provides transportation to non-residential students without receiving state transportation funding. If those non-residential students become residential students of USD 115, the district gains eligibility for state transportation funds. USD 113 would no longer receive state transportation funds for students within the transferred territory that chose to continue to attend USD 113 schools.

• Current non-residential patrons of USD 115 would become eligible to vote in USD 115 school board elections. Those who become residents of USD 115 would also become eligible to run for positions on the USD 115 school board.

• Enrollment of both USD 115 and USD 113 is predicted to remain almost the same. Evidence provided by both school districts indicates the students that live in USD 113 that want to attend USD 115 already do so except for 10 students previously deemed to be “not in good standing” by USD 115. If those 10 students are all from the petitioned-for territory and the petition is granted, USD 115 would no longer be able to deny their enrollment. There is no anticipated change in the number of faculty or staff needed by either school district as a result of granting the petition.

• USD 113 anticipates losing approximately $18,172,666.00 in valuation. As a result, USD 113 anticipates losing approximately $305,109 in Supplemental General Funds. These figures do not account for, and are in addition to, the valuation of territory that USD 113 has already agreed to transfer to USDs 335 and 380.

Results If the Petition is Denied as Written

• If denied, there would be no change of school district boundaries as they pertain to USD 113 and USD 115. The transfers of territory agreed upon by USD 113, 335, and 380 will still occur, because those were by agreement and have already been approved by the State Board.

• According to testimony provided during the public hearing, there would be no change in enrollment and no change in its acceptance of non-resident students by USDs 113 or 115. Enrollment of both USD 115 and USD 113 is predicted to remain the same.

• One concern raised during the public hearing and in letters received is whether the state’s new open enrollment law would require those non-resident students that have  attended USD 115 prior to 2024-2025 would be subject to the same lottery system as those students who would attempt to enroll in USD 115 for the first time. During the 2024 legislative session, the open enrollment law was amended to specifically allow all non-resident students who were enrolled in and attended a school district of non-residence during school year 2023-2024 to continue such enrollment and attendance in such school district until such student graduates from high school unless the student is deemed as no longer being in good standing. The law is further amended to require school districts to give priority to any sibling of a non-resident student who is enrolled in and attending the school district or who is accepted to enroll in and attend the non-residential district.

• Current non-residential patrons of USD 115 would remain ineligible to vote in USD 115 school board elections.

Results if the State Board Approves Land Transfer Other Than As Petitioned

• An important requirement for any transfer of territory, whether it be by agreement or by a unilateral petition such as the one currently before the State Board, is for the requesting school district(s) to provide a legal description of the district boundary modifications. The legal descriptions generally come from a professional surveyor or other appropriately licensed professional with the training and experience necessary to write them. Examples of legal descriptions can be seen in Exhibit A of USD 115’s Petition. Legal descriptions are never as simple as looking at a map and drawing lines based on what looks right, and it is almost never as easy as following major roads, waterways, or even county lines. For this reason, the school districts were advised in 2023 that each proposed transfer (113 to 115, 113 to 335, and 113 to 380) should be handled separately and one at a time so that none of the parties would need to guess whether a preceding transfer was approved. Unfortunately, that is not what happened here. Because the Petition assumes the transfers from 113 to 335 and 380 did not occur, the valuations, boundaries, and even square mileage figures are inaccurate – especially as they relate to Tract 3.

• Counsel for USD 115 submitted “Petitioner’s Supplemental Written Testimony” by way of email to the email address provided for public comment. This document was received on the last day that any public comments were received. The document does not indicate whether the same was shared with Counsel for USD 113. Within the written testimony are two new “alternative” land descriptions that would “ultimately be acceptable to USD 115 and the families in the Petitioned Area as a whole.” This approach is problematic for two reasons: it is unknown whether USD 113 has even seen these alternatives, and by waiting until after the public hearing to offer these alternatives, USD 115 has robbed the public of its opportunity to review and provide comment. For that reason, this Hearing Officer recommends the State Board either approve or disapprove the Petition as it was written.

Preferences of Persons Affected by Transfer

• Proponent testimony can be summarized as making four general arguments in favor of transferring territory from USD 113 to 115:

• Desire to right a past wrong: Many people spoke of promises made in 2010 that if the Bern community voted in favor of consolidation with Prairie Hills, the school board would give them five years to try to keep the Bern school open. They also spoke of a promise by district leadership that if the Bern school is closed, the voters could “take their land with them”/“the land could follow the students” to the district of their choice. This was a consistent message in the written and spoken testimony.

• Desire to be represented on the school board: Many testified they feel it is wrong that they do not get to vote in the school board elections for the school district to which they choose to enroll their children. There was testimony that because USD 113’s school board positions are all at-large, the people of Bern and the rest of the area outside of Sabetha are not really represented by any school board member and feel disenfranchised.

• Desire for tax revenue to follow the students. Because of the number of students enrolled in USD 115 that do not live in the district, USD 115 has taken measures to increase its funding at the expense of its residents.

• Community/Safety. Proponents generally stated a preference to conduct their business and to have their children travel to and from Seneca rather than to Sabetha. They feel closer to the seat of USD 115 and they feel the roads are safer.

• Opponent testimony can be summarized as making three general arguments to not transferring territory from USD 113 to 115:

• Distrust/feel this is a reaction to the closing of Wetmore. Without making any judgment as to the veracity of the claims, it is fair to highlight a repeated belief that this Petition has been driven as a revenge tactic/following up on a threat of what would happen if USD 113 closed the Wetmore school.

• Nemaha Central had the opportunity to consolidate with 113 in 2009 but chose not to. Opponents of the proposed transfer feel they should not be allowed to take the territory that Nemaha Central once rejected. Editor’s note: Gordon wrote USD 113 in the first sentence of this point, but it should say that “Nemaha Central had the opportunity to consolidate with USD 448 in 2009 but chose not to…”

• Locally elected school boards should be responsible for negotiating district boundaries, not the Kansas State Board of Education.

Consideration of Statutory Factors

• The granting or denial of the Petition will not affect the ability of either district to offer and maintain the grades and units of instruction required by K.S.A. 72-3216. Of course, the ability of a district to continue to meet its responsibilities under K.S.A. 72-3216 is clearly tied to its enrollment. If a district’s enrollment declines over time, it is doubtful the district could continue to meet these requirements. Here, there is no reason to believe either the approval or denial of the Petition will result in declining enrollment of either district.

• The factors in K.S.A. 72-532 concerning city boundaries, renovation versus construction costs, and landlocked districts do not appear to be applicable to this situation. If there was a desire to have school boundaries pass through the middle of Bern, that may become an issue but neither district is offering that solution.

• Both districts currently have the capacity to serve students in the transfer area. USD 115 has recently taken steps to cover the costs of expanding and upgrading its facilities based on an increase in enrollment – much of which is due to enrollment of nonresident students. USD 113 leadership testified to having the capacity and desire to enroll all of its resident students if they chose to do so.

• The transportation cost issue is complex. Transportation costs cannot be estimated yet because those costs are based on the number of pupils who, on September 20 of the current school year, who are residing within the district and 2.5 miles or more by the usually traveled road from where they attend and for whom transportation is being made available on regular routes by the district divided by the number of square miles of territory in the district. This Hearing Officer can only assume that transportation reimbursement from the state will increase, because USD 113 is not currently transporting their students that attend 115 and 115 will be eligible to receive additional funds for any non-resident students currently being bussed if they live 2.5 miles or more from where they attend school.

• Both school districts have the capacity to continue to offer food service in their schools whether the petition is granted or denied.

• There has been no evidence provided and no reason to believe that staffing needs of either school district will change because of the requested transfer of territory.

• If the petition is granted, those students living in the disputed area that currently attend USD 115 will continue to attend USD 115 but would no longer be considered non-residential or out-of-district. Due to recent changes in open enrollment laws, students living in the disputed area that currently attend USD 113 would have the option to continue attending USD 113 unless the district deems them to not be in good standing. Any students within the disputed area that attend public school in districts other than USDs 113 and 115 would either retain their status as being “out of district” for those districts they attend by choice or they would attend USD 115.

• It does not appear that granting the petition to transfer territory would add to the general improvement of the public schools and the equalization of the benefits and burdens of education throughout the various communities of the state or promote a wiser use of public funds for the support of the public school system in the state.

Petitioner argues in its Response to USD 113’s Answer [HOE 10] that USD 115’s enrollment of 75% of the students that reside within the petitioned territory creates an inequity that should be resolved by the State Board. Petitioner also argues that because USD 113 has more territory than neighboring districts, it should give up the parts of that territory that resident students have functionally migrated from at the expense of the receiving districts. Petitioner’s arguments are unpersuasive.

When it first passed school equalization acts in 1963, the legislature intended to “create a manner to equalize the benefits and burdens of education communities throughout the various communities in the state. The basis for the School District Equalization Act legislation was to provide an adequate level of funding for school districts, to determine local capacity to pay for educational services, and to recognize the impact of resources on educational opportunity through the principle of state aid in inverse proportion to ability to pay.” Neymotin, F. The Relationship Between School Funding and Student Achievement in Kansas Public Schools. Journal of Education Finance, Vol. 36, No. 1 (Summer 2010). The inequities for which the legislature adopted certain funding policies came from school districts’ inability to pay for the same educational opportunities that neighboring districts could afford. The resulting equalization funds make up for funding gaps that are beyond the receiving district’s control. Here, USD 115 has chosen to allow out of district students to enroll in its schools for which it receives base state aid per pupil. Any funding burdens faced by USD 115 stems from enrollment policies adopted by its school board.

USD 113 accurately points out that because its assessed valuation per pupil is below the 81.2% percentile, it already receives supplemental state aid from the state to make up for its inability to pay for the same educational opportunities as neighboring districts can afford. If the petition is granted and territory is transferred by the State Board, the State Board would exacerbate those financial inequities rather than foster its equalization. That is not to say the proposed land transfer would cause a detrimental exacerbation of an inequality. In the grand scheme of school funding, the amount of any increase in state aid to either district would be minor compared to each district’s budget and to the state’s education budget as a whole.

48. Petitioner argues that closing of Wetmore’s school is a material change in circumstance that warrants action by the State Board. Indeed, the guidelines specify that a recent school closing which makes it more practical for students to attend school in an adjoining district so constitutes a material change. Neither the State Board’s guidelines nor state statute define what “recent” means, nor does the guidance specify how to calculate — for these purposes — the amount of territory that a school closure affects. This Hearing Officer reviewed past decisions by the State Board and is unable to find a specific finding. Here, no such finding is necessary because the material change in circumstances caused by the Wetmore closure has already been resolved by the agreed-upon transfers of territory from USD 113 to USD 335 and from USD 113 to USD 380. There is no reason to believe that further action by the State Board is needed to resolve the circumstance that has already been resolved by the agreed-upon transfers of territory.

Summation and Recommendation

This Hearing Officer has heard from dozens, if not 100s, of USD 115 patrons that have tried for over a decade to become official residents of USD 115. They live on land that has been family-owned for generations. They attended school in Nemaha Central and they intend for their children to do the same. They have been told that state law does not provide a means for individuals to have their land reassigned to a different school district — that only school boards can make that happen. They have opinions about how the schools their children attend should be run, and they want to be heard. They are tired of their property taxes being used by what many consider to be a different community than that to which they belong.

The role of the Hearing Officer in these cases is to gather information sufficient to make an informed recommendation to the State Board on whether it is appropriate for the State Board to take action. That recommendation should be based on the policies and practices of the State Board, state law, or other such published guidelines.

It is the recommendation of the undersigned Hearing Officer that the Kansas State Board of Education deny the petition filed by the USD 115 Board of Education requesting the State Board to transfer territory to it from USD 113.

The board’s meeting on Tuesday and Wednesday, June 11 and 12, can be viewed online at

The Herald will have a full story about the KSBE meeting in the Wednesday, June 19, issue.

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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