Land transfer petition denied by 6-3 vote

The land transfer petition introduced by Nemaha Central USD No. 115 has been denied by the Kansas State Board of Education (KSBE). This came with a 6-3 vote on Wednesday morning, June 12.

Those board members voting in favor of denial were local representative Danny Zeck, Melanie Haas, Michelle Dombrosky, Ann Mah, Jim Porter and Jim McNiece. Those board members voting against denial were Cathy Hopkins, Deena Horst and Dennis Hershberger. Betty Arnold was not present for the meeting.

This decision came after a year-long dispute and a failed mediation between Prairie Hills USD No. 113 and Nemaha Central USD No. 115 over the Bern territory. Both districts participated in a four-hour long public hearing in March where an appointed hearing officer — Scott Gordon, legal counsel for the Kansas Department of Education — was assigned to gather facts and listen to each district’s legal counsel, as well as proponents and opponents of the land transfer.

Nearly two weeks ago, Gordon released hundreds of pages of data, letters and legal documents to both KSBE and the public, recommending denial of the petition. The board was able to review those documents, as well as the video of the public hearing held in Bern, prior to their meeting on Tuesday and Wednesday, June 11 and 12.

More discussion, explanations and oral arguments came on both days of the meeting, but in the end the board voted to deny the land transfer and encouraged both districts to come together to come up with a resolution locally.

Tuesday, June 11

Citizen’s Forum

KSBE opened the citizens forum portion of the meeting around 10:30 a.m. and there were 10 speakers who discussed the land transfer petition.

Ross Mosteller of Bern thanked the board for giving “thoughtful consideration” of their request to be heard referring to the KSBE approval of hearing oral arguments from both sides. R. Mosteller said that USD 113’s continued rhetoric is that “no material change in circumstance has occurred.” Mosteller said that he is “no longer upset about the closure.” He named multiple businesses that have closed since the closure of the school in 2012, which he said is a material change in circumstances for all the Bern families involved. He asked the board to “dig deep into the data that clearly shows why we’re asking for this, and help solve a decade-old unfulfilled promise to our community.”

Former Bern/Axtell/Summerfield USD No. 488 and former Prairie Hills USD No. 113 board member Brent Lortscher of Bern said that during all consolidation discussions, Bern patrons were told that they could “take their land with them” if the school closed. Then, he shared his opinion, which is the same as it was in 2012. That opinion is that a line should be drawn down O Road to split the town of Bern between USD No. 115 and USD No. 113. He asked the board to transfer the land west of O Road from USD No. 113 to USD No. 115.

Karen Mosteller of Bern said the petition is not about money, sports rivalry or the “fear that a Pandora’s box is going to be opened.” She said this petition was about people and representation. K. Mosteller quoted multiple Sabetha Herald articles referencing quotes by USD No. 113 Superintendent Todd Evans. She said the land which lies closest to Axtell that USD No. 113 wanted in trade for the Bern land has a “very profitable” oil pipeline that runs through it. She said she believes a line can be drawn and thanked the board for solving this “long overdue injustice.”

USD No. 115 Board President Amy Sudbeck said there are “charged feelings” behind the petition. She asked KSBE to consider the facts versus the feelings or people’s opinions. She said that after reading Gordon’s recommendation to deny the petition, she asked herself, “where are all of the facts?” She said that the facts overwhelmingly support the land transfer petition. She concluded by saying “the facts is where the vote lies.”

Mark Sudbeck of Seneca and landowner in the petitioned area asked for their voices to be heard and wishes the State board would have been involved before now. He said he also believes that the State board should be “involved in all consolidations or closures of any size school.” He asked for all district lines to be looked into.

Kristin Meyer of Bern said she is representing her family and numerous other families who “desire to keep their land in the USD 113 district.” She said during the May 14 KSBE meeting, they heard a “false narrative expressed by the USD 115 board, that ‘no one at the public hearing in Bern on March 22 opposed the transfer.’ Families such as mine chose to submit letters to the email provided for that purpose and not to speak publicly that day to preserve relationships…” She referenced the 2010 election and the choices that have been made by all parties involved.

USD No. 113 Board President Leslie Scoby commended USD No. 113 Superintendent Evans for his leadership over the past 18 months, as well as Gordon’s professionalism and impartiality throughout the process. She also said that an estimated $250,000 has been spent on this process by various school districts.

USD No. 113 Superintendent Evans commented that “USD No. 115 has indicated that their $24 million bond passage represents the material change in circumstance.” Evans said this is not a legitimate change of circumstance and is actually “forbidden” by the board’s policy. Evans asked the board to follow their policy, which is “simple and ethical.”

Kristina Sudbeck of Seneca and landowner in the petitioned area said she believes her child will get a “better and well-rounded education at Nemaha Central, based on her own experiences.” She said this is not the “first, second or even third attempt to solve this at a local level.” She also said that the USD 113’s voting structure allows for everyone in the town of Sabetha to vote on the Bern area representative.

Central Plains USD No. 112 patron Denise Schmidt said she lives 200 miles away from Seneca and Sabetha, but she is a veteran educator and doctoral student, who has been studying rural school district consolidations in Kansas. She said she has been through two building closures and a consolidation. Then, Schmidt said that if the board granted this land transfer petition, then it would set a grave precedent across Kansas. She said these decisions should be made by local boards of education. She also said this could continue a pattern of legal maneuvers that are not based on merit but vindictiveness.

Scott Gordon’s Presentation

Gordon began his presentation by explaining that approximately a month after the public hearing on March 22, he returned to Nemaha County. At the time, he visited Bern, Seneca and Sabetha to try to understand the area and see what O Road was, and to drive the roads between each of the towns.

“What I learned during the public hearing is that while these are small towns, these are people with big hearts,” Gordon said. “They’ve got big desires and big concerns. Everyone while I was there, they were courteous to themselves. They were courteous to me. They were courteous to the process… Without it being announced at the end, everyone participated— at least enough people participated at the end — to start stacking the chairs away before I had even left the building, and I thought that was commendable.”

Gordon gave a history of land transfers in Kansas since 1987. According to Gordon’s information, there have been 24 agreements between school districts and 23 of those were approved by KSBE. Also since 1987, there have been 23 land transfer petitions filed with KSBE and four of those were withdrawn. Eight of the remaining 19 petitions were approved by KSBE, while 11 were denied.

Gordon again went over K.S.A. 72-532 and the information to be obtained, including boundary lines, land valuation, etc. Then, he listed the factors which the State board must consider. Those include: the effect on current and future students; general improvement (or lack thereof) of public schools across the State of Kansas, equalization of benefits and burdens throughout the impacted communities; and whether there has been a material change in circumstance of “substantial and weighty nature.”

Gordon then gave a visual of a conversation he had with a former coach.

“We were at a national tournament and there was discussions of changing certain rules, and he was dissatisfied that there was an effort to change a rule at the national tournament after the entire season had finished up,” Gordon said. “His point was this, ‘You don’t move the goal post in the middle of the game. Tell me where the goal posts are and that’s where we’re going to kick it, but you have to tell us ahead of time where that is going to be.’”

Gordon said the goal posts in this matter were the factors listed in the statute including city boundaries, district capacities, buildings, busing, food service, staffing, commerce, areas of interest, enrollment and long-term effect on students. Gordon went through each factor and summarized the information and facts related to those factors.

When he got to material change in circumstance, he explained that the factors that should count were recent school closings, new/distant school openings and changes in the land itself. He said what doesn’t count are changes in transportation policy, changes in school district property taxes and requests to gain financial advantage.

“If it’s a recent school closing, again, what do you mean by recent?” Gordon said. “I don’t have a clear definition for you of what a recent school closing would be. Within the past three years, sure. If the school closed 12 years ago, no, I think I made that conclusion that that would not be a recent school closing. That is the conclusion I reach, reading the facts and the law. Regarding the recent school closing, yes, there was a recently closed school in Wetmore. That has been resolved by the two agreements that have just been signed by Chairman [Melanie] Haas earlier today, based on your vote you took last month. Again, the State board generally prefers those issues to be resolved by agreement and they were.”

Then, Gordon touched on the “promises” that were reportedly made during consolidation talks. During USD No. 115’s public hearing presentation, they showed a 2010 article from The Sabetha Herald which said, “students would have a one-time opportunity to attend a school of their choice. However, transferring land and taxes to another school district would not be as simple. There is a legal process that must be followed when transferring land to another district and parents would be given the opportunity to move their land into another district by following the process.”

“This is that process,” Gordon said. “Now, I don’t know if the individual was misquoted. I don’t know if the individual misspoke. I don’t know if the individual misunderstood or had a clear understanding of what this process looks like. It doesn’t happen very often, but it is a long and difficult process. Yes, is it hurtful to be promised by a school district leader and not have that happen? Of course it is. But where does that fit into the guidelines that you have provided to me to give a recommendation? To make up for the mistakes or the misstatements of another official, it’s not there.”

Gordon also pointed out that just because there is a majority of people who want this land transfer to happen, it doesn’t mean that it is what the public election laws support.

“Consider what it would be like if that were the case. If every time there was a change in the majority of people in a certain area, they wanted to have a new election to change the school district boundaries,” Gordon said. “The law does not consider that [majority] a basis and the State board does not consider that a basis by which they should be involved in transferring the territory.”

Gordon also said, in regards to wanting an opportunity for parents to vote in school board elections and serve on school boards, that there is no basis for the State board to transfer territory.

“Having a voice matters,” Gordon said. “But until you as a State board put that in as a factor for me to consider, I can’t consider that as a reason to make the recommendation. If there is going to be a change in the policy or the law, that has to come from you. Not me.”

Gordon also said the board could make amendments to the petition, however, that would be “bad in practice.”

Vice Chair Porter and board member Hopkins asked a few clarifying questions prior to oral arguments.

Josh Ney’s Presentation

USD No. 115’s attorney Josh Ney started first in the oral arguments segment of the meeting. He chose to split his time and offer a closing rebuttal after USD No. 113’s attorney David Cooper gave his oral argument.

Ney presented USD No. 115’s final arguments, which included the two land transfer alternatives that they submitted to Gordon on the last day — April 15 — that emails could be received. These alternatives were never provided to USD No. 113 for review and consideration. He also presented the “findings and conclusions made by the board overturning the hearing officer’s recommendation in 2000 in the Abilene case.”

“We think we have better facts,” Ney said. “We think we have a more compelling argument and even in that case, the board decided to overturn the hearing officer’s recommendation and grant transfer.”

He also provided his proposed findings of fact and conclusions of law that were circulated by Mark Ferguson to the board, as well as the capacity for USD 115, which was submitted on June 1, 2024.

Ney encouraged the board to “get out the red pen and get to the messy middle.”

“It’s hard work and you’re trying to account for representation. You’re trying to account for allocation of resources, and that is ultimately something that’s invested to you through this statute, to actually decide what would most come to the middle in this. I would suggest that the hearing officer’s statement that the problem with that approach would be that nobody gets what they want is exactly what you want. That is exactly what we try to do in mediation. We try to get to the messy middle. We try to exchange things, where no one is happy at the end of the day, but when it’s in the middle, it resolves it, and it resolves it with more finality than giving one side or the other everything they want. Because chronic inequities have a way of continuing in the public policy process.”

“The idea that you granting this petition would open up a Pandora’s box is like saying, ‘Well, if we do justice and we accomplish equity today, we might have to do justice and accomplish equity tomorrow,’” Ney said. “The facts have always been on our side.”

Ney said that the request is being “dismissed on technicalities” because Gordon’s recommendation weighed heavily on the “you snooze, you lose,” when they were wanting to take the “wait-and-see approach,” instead of “rushing to the courthouse” to start a land transfer.

“In that situation, you would be decentivizing a wait-and-see approach. You would be decentivizing local conversation over the course of years that could mature into agreements, and you’re decentivizing enrollment trends shaking themselves out over the third, fourth and fifth year…” Ney said.

After that, Ney recapped the maps that were swapped last summer during negotiations. Then, he presented the alternatives that USD No. 115 were proposing for consideration, as well as the landowner survey results.

Ney said that when USD No. 113 would only do a land valuation swap in mediation, they were unable to come to a resolution and USD No. 115 was forced to move forward with the petition.

David Cooper’s Presentation

USD No. 113’s attorney David Cooper presented last in oral arguments and he chose to use his full amount of time. Cooper started by saying there has been no material change in circumstance, the proposed transfer does not improve public schools in Kansas and the transfer negatively affects equalization.

Cooper said he speaks to the statutory guidelines and the statutory criteria to be considered, because “this is a legal proceeding.”

“This board is sitting in a quasi judicial capacity to determine a petition brought before it,” Cooper said. “But the issue also involves schools. It involves families, neighbors and children, and because it involves land, families and neighbors, it invokes emotion and passion. It’s because of that emotion, passion and sentiment that we have laws, rules and guidelines to make rational, reasoned decisions, instead of being ruled by emotion and sentiment.”

Cooper asked what precedent the board wanted to set.

“Do you want to be spending your springs and summers doing what we’re doing right now? Considering these petitions and refereeing these disputes? Because if you approve this petition in anyway, shape or form, this will not be the only one you get,” Cooper said.

Cooper referred specifically to the students that live in the Hiawatha USD No. 415 territory but attend Prairie Hills USD No. 113, which are 83 of the 123 out-of-district students that USD No. 113 educates.

Cooper pointed out that the mediation agreements with Vermillion USD No. 380 and Jackson Heights USD No. 335 were different than Nemaha Central USD No. 115’s petition, because there was a material change in circumstance due to the Wetmore Academic Center closure in May 2023.

“USD 113 is reasonable,” Cooper said. “There were reasonable offers on the table and the parties couldn’t agree.”

Cooper addressed that the land which USD No. 113 wanted to swap and take from USD No. 115 was by Axtell, which has USD No. 113 students living in them.

“Justice is the appropriate outcome according to the law and according to the rules,” Cooper said. “What you’re being asked to do today, the first 20 minutes of 115’s closing argument was, ‘I understand that we’ve been playing baseball for a year, but I think I’m not going to win that game, and so I would like to change the rules and play cricket now, because I have a better chance of winning that game, I think.’”

Cooper reminded the board that they “cannot grant the petition as presented.”

“The petition as presented includes this little area that you just gave to [USD] 380,” Cooper said. “So, it’s not ours to give. It’s not ours to take from them and give to [USD] 115 now. There has been no request to amend the petition, and that agreement has been in place and was in place from Dec. 6 [2023], so I cannot fathom why that piece of territory, which is agreed to be given to [USD] 380, is included in a petition by [USD] 115. So in effect, the petition asks not to take from just [USD] 113, but also from [USD] 380. That is not a petition in front of you. [USD] 380 is not here to address the request to take territory that they will have as of July 1 [2024].”

Cooper said the “supplemental written testimony” submitted by USD No. 115 on April 15 was a “poorly disguised attempt to amend the petition without giving USD 113 a chance to weigh in, without having a public hearing on a petition that looks like that.”

“Again, baseball to cricket. Football to Rugby. Whatever analogy you want to use,” Cooper said.” Let’s change the rules, which is ‘this is the dispute framed in the petition.’ Bait and switch now that we’re hearing, ‘I want you to split the baby for me, please.’ Without giving us the opportunity to answer a petition, to have a public hearing that addresses what that actually looks like, and seeing if reasonable minds can agree that that is what it should look like through the mediation process. It is clearly not fair to come at the 11th hour and say, ‘If we can’t have what we asked for, will you give us what we really want?’ Because you shouldn’t have asked for anything you didn’t really want.”

At the conclusion of Cooper’s presentation, board member Mah asked if USD 113 bussed in its out-of-district students as well.

“Yes,” Cooper said.

Board member Horst asked more about the failed mediation.

“First, you have to go back to 2009 and 2010 and the consolidation of 448 and 441,” Cooper said. “The suggestion that there were promises made that if Bern closes, ‘you can take your students and your land…’ That didn’t happen and whoever told those people, assuming they were told, that is not someone who was authorized to make a promise like that. I represent school boards across the State of Kansas and I would tell a school board, ‘You cannot promise them what a future school board is going to do.’ So that is not a promise that anybody could make that would be binding. As an advisor of school districts, don’t make such a promise because it’s not a real one. That premise of ‘we were promised X but didn’t get it’ is not really part of the mix.

“Also, why did we reach agreements between [USD] 113 and [USD] 380 and [USD] 335, and not [USD] 115, when there was a recent material change in circumstance? Wetmore had just closed and those students were going to where they were going to go. Now, if you would have drawn the line where we did, by agreement, I am not sure. Our position is that it should have been further south and their position is that it should have been further north, and we agreed on what we agreed on. But we were there in good faith with a material change in circumstance. [USD] 115 didn’t come in good faith, because they wanted what they wanted and if they didn’t get it, they were coming to you. Period. Full stop. We proposed valuation neutral land swaps and were rejected out of hand, every time. [We proposed] land swaps to keep equalization where it is currently and that was rejected. You can’t reach an agreement with somebody who says, ‘my way or nothing.’”

“That is why we need to hear if the alternatives were offered to you, I assume they were not,” Horst said.

“Those specific alternatives, no,” Cooper said.

“Until recently,” Horst said.

“No, they’ve not been offered to us. They were snuck into you in the dark of night,” Cooper said. “I didn’t know those existed until Mr. Gordon sent them to me on the 28th of May,” Cooper said.

“That’s why I wanted to know why it wasn’t offered when you were mediating,” Horst said.

Josh Ney’s Rebuttal

“They were offered and they were offered on December 5, 2023, when we were on the second day of two full days of mediation,” Ney said. “[USD] 113 never asked for valuation neutral from [USD] 335 or [USD] 380 for any of their land. They just offered land that [USD] 113 had and there was an agreement… But the messy middle was accomplished. The second day, we get to the table and all of sudden there is a new standard, which is [USD] 115 has to give us [USD 113] equal land – there may or may not be students in it, but you [USD 115] have to give us [USD 113] equal land, because they [USD 113] thought they had the trump card, and the trump card was they [USD 113] ran out the clock. They [USD 113] believed your guidelines were so controlling, it doesn’t matter how inequitable this situation is or where the students are, they [USD 113] just wanted the money. So, we [USD 113] will take the oil land and we [USD 113] will give you the students. Those two alternatives that I apparently snuck in in the middle of the night were going back and forth. These were the alternatives going back and forth. Every time we came back, the answer was, ‘we want to swap.’”

Ney said he is asking the board to do what they thought they were doing on the morning of Dec. 5.

“Ultimately, the best way to balance factors is to look at the totality of circumstances and that is what we are asking you to do,” Ney said. “That is why we continue to work on where should the line be drawn. That is why I brought a red pen today. Should it exclude Bern? Should it exclude [Section] 1.2? What’s the rationale of them asking for those two sections as a valuation swap when there’s hardly any students there?

“The data has never been on their side. When you have the facts, you pound the facts. When you have the law, you pound the law. When you have made-up technicalities and when you have none of that, you pound the table. Here, we have been confident. That is why USD 115 has been willing to invest the time, energy, 12 months of this, getting all kind of attacks on social media, to take the emotion out of it and develop a complete record. It’s a shame that you’ve received that just days before the decision has to be made. I think that process has to be deliberative. You have to deliberate. You have to weigh the factors.

“The technicalities I would say are made up. If they existed in the statute, I’d say you got me, but ultimately this is about the area that wants to be transferred. They’ve already put their money where the mouth is by sending their kids there. It makes sense for the community. This is the county seat, Seneca, where all of their church, grocery shopping, little league flows in to. The only place in our petitioned area that is equidistant to Sabetha is Bern and that is why you have a minority, but a significant amount of students there attend Sabetha. So, I’d ask you to do the hard work and give us the messy middle and engage in your statutory obligation to approve, disapprove, or approve the petition with such amendments as you deem appropriate.”

The board, along with their legal counsel, went into a 30 minute executive session, which is allowed under KOMA. There was no action taken by the board following the executive session.

The video from the Tuesday, June 11, meeting can be found at https://www.youtube.com/watch?v=XWi6ZfmiM9c&t=3s.

Wednesday, June 12

Gordon provided a summation starting day two of the KSBE board meeting.

Gordon clarified that when he was going through all of the emails, that the two alternatives which were submitted on the final day — April 15 — looked similar to other legal pleadings. Therefore, he emailed all parties to ask if they had ever seen the documents and the response he received was “I have never seen this before.”

“Why is this important?” Gordon said. “From my consideration, I didn’t think it would be fair for me to make a decision based on “this amendment or option number two looks pretty good, I think I’ll recommend that.” I didn’t think I could make that recommendation when the other school district, from which the land was going to come from, hadn’t even seen that yet. It was not received by my office until well after the public hearing. That is why I did not include many findings on that in my part.”

Gordon also touched on the submitted letters from area patrons who requested their letter stay confidential.

“I didn’t think it would be right for me to withhold those from you. It wouldn’t do any good. Why would you bother sending a letter if you didn’t want it shared with the State board, and of course once there is a document that is shared with you, it’s in open record at that point. It’s fair game. So while I did redact — I hope I got everybody’s personal contact information and email addresses from those documents — I don’t have the option of keeping those confidential. I was not trying to throw anyone under the bus or sell anyone out or cause drama. I just felt like that was what I had to do.”

Following Gordon’s summation, the board members gave their stances and asked questions.

Board member Hershberger asked Gordon for his interpretation of K.S.A. 72-532, specifically the bullet point that talks about the transfer adding to the general improvements of the public schools in the State and equalization of the benefits in the affected communities.

Gordon gave a visual of how equalization tries to “balance out the needle” between school districts.

“It says for you to take action, it should be for the equalizing those things and not causing a bigger gap,” Gordon said. “You have to consider not just those students who are in the area to be transferred, but as the district as a whole.”

“The reason why it is interesting to me, in the testimony, both districts have equal affect now. They’re both serving their students well and it just is almost like a geographical issue more than anything about equalization,” Hershberger said. “It’s almost like it doesn’t apply in this case.”

“We are not talking equal population or talking about the equalization of how many teachers you have or how good the schools are,” Gordon said. “It’s a financial question. That is what the equalization is referring to. That is how I am reading it.”

“The tax burden was like two percent of their total budgets, right?” Hershberger said.

“I think that was the number that was in there,” Gordon said.

Hopkins asked when KSBE has transfers that come to them through the mediated agreed process, if they looked at the equalization aspect as well when they are “putting the final stamp of approval on that.”

“Until this, I didn’t realize that could be an issue,” Hopkins said. “With the other two transfers that have occurred through agreement, there was no land swap. Did it affect equalization?”

“It is still something that the State board has to consider,” Gordon said. “Was there a transfer of land value from one district to two other districts that resulted in certain land value being exchanged? Yes. Obviously, if you give something away and get nothing back, there is a transfer of value there. That is certainly a consideration. The issue is, if there is an unequalization, if there is such a thing of that happening, that is a result of the choice and agreements with the schools districts, not because of the action taken solely by the State board.”

Then, board member Zeck gave his opinion and made a motion to deny the petition.

“Since this is my district and I have been very fortunate to be in both towns and there is a lot of goings on in both areas, this is really hard, because both towns are really great,” Zeck said. “The schools are really great. Good people and good support, but on the other side, I am going to make a motion that we deny the land transfer from [USD 115] and uphold the hearing officer’s findings.”

Board member Mah seconded the motion and then commented for the record.

“I think we need to build a record to support whatever decision we make,” Mah said. “Looking at the list of the 11 things in the law and the four guidelines that a previous State board laid out, that we need to consider. Here is a list of things that I have been thinking about. One, I don’t think that approving it would better the education throughout the State. District 113 serves more out-of-district students than 115 and all of those parents made the same choice as those in the disputed area. They pay taxes in one district and send their kids to another. That happens all over the state and the fact is now, with open borders, that’s just an unknown quantity that we also have to consider. We could have thousands of more kids across the state where they are attending school in one district and their parents are paying taxes in another. The legislature made no notion at all that the land would follow the kid or the property taxes would follow the kid.

“There is a negative impact on equalization. I think it’s too bad that someone made a promise 10 years ago about the land following the kids that they had no authority to make. I think it was obvious that the Bern school was going to close in any case. Seneca was just more up front about it than the other. Maybe [USD] 113 actually thought after a few years that they could save this school, but it took them two years longer to get to the same point that Seneca was already at. We don’t let folks just vote on moving their land from one district to another for a reason because neighborhoods change, and we can’t be moving districts back and forth from one district to another. That’s why this responsibility falls on us, because we have to look at the larger picture and how it impacts the entire state.

“So, I think when you look at the 11 factors in the law, you can’t get there for an approval for this land transfer. There is just not a good reason to move it, and I agree the answer might be out there in the messy middle, but I think they need to go back and figure that out themselves, and they don’t have to wait two years to make that happen. They could make that happen next week. I support the motion to deny the transfer.”

Board member Porter said he has spent his life trying to solve problems, but he wanted to know if the two could meet to solve this at a local level.

“I certainly don’t have the skills or the knowledge to bring out the red pen,” Porter said. “That would be ridiculous for me or any of us to do that. This is speculation on my part, but there is not six votes at this table to approve the land transfer. I think both sides have really good arguments. Is there a way to solve this problem? Because if we approve the motion, by the way I am going to support that motion, can the parties get together without your lawyers and actually come up with something that you all can live with? I wouldn’t expect any district to give up something without getting something in return.”

Gordon asked on behalf of everyone if they were actually wanting both sides to stand up and answer now, or if it was rhetorical question.

“I think the question was hypothetical and not asking for an actual response,” said KSBE legal counsel Mark Ferguson.

“I think Mark told me I couldn’t even ask the question, but I spent my life not listening to lawyers,” Porter said. “I’d like for the people that are there to come up with a solution. They know more about it than we do. I don’t know if that is possible. Yeah, I would like an answer.”

Despite Porter’s request, representatives from USD 113 or USD 115 never answered.

Hershberger said this has been the toughest thing they have faced as board in their 1-1/2 years together.

“I always try to think of decision-making from a philosophical, maybe even political, a freedom, and what we do today will make some philosophies to stand for maybe a generation. I really would rather go the route that Mr. Porter suggested, but I will say that when it comes to freedom, I always think of property rights, ownership, parental choice, and I have to vote against this motion for that reason. I would hope that whatever we do today will open the door for the two districts to come together, because I think that is the right process. I think, as Americans, we need to be looking at everything through the lens of freedom and whatever that means to the individual and groups of people, we want to protect that with everything we have.”

Then, Horst gave her opinion on the issue as the former representative of the Nemaha County area.

“As Mr. Zeck has found out, you are both quality schools,” Horst said. “As one patron of one of the school districts mentioned, Nemaha County feels that education is very important and their actions show it. The way the teachers and their students show it. So you need to be very proud of that. I’m hoping that there is a recognition by [USD] 113 that there are people who may have voted at one time because they thought they were going to be able to save their school, because they had a bond issue that they were paying off as well. So they wanted to keep their school open. That you will find a way of making them feel like they are a part of the district, either that or you work something out so that they’re not feeling like they are being held captive, because having visited with some of them, true or untrue, that is the way some of them feel. They feel like their land was grabbed.

“I think it behooves both [USD] 115 and 113 to work to find a way to ensure that the folks in Bern all feel like they are a part of what they’re funding. It will be difficult for me to agree to rejecting or to accepting the petition. The original petition, it has some flaws, so legally it’s difficult to agree when it has those flaws, but it’s difficult to disagree because of all the history that I’ve been made aware of from the entire time and the way that folks feel. I will join Mr. Hershberger in his thought that there needs to be recognition that freedom is important. Taxation without feeling like you’re represented is not our way. My plea is that you all work it out together.”

Board member McNiece said this is an “awful situation we’re in.”

“There is not going to be any clear winner when we vote, because there are so many good people involved,” McNiece said. “I’m going to use this situation that we are in right now as a parting board member. We’re going to see more of these. I would encourage the board to take some kind of time and energy and look at the rules, because the rules were made a long time ago. Look at the situations and anticipate some situations. To both communities, I’m sorry this has happened. You’re good people. Any decision we make is the wrong decision for someone and the right decision for someone, maybe not for anybody. The lawyers need to step in and help us figure this out. We as a board need to provide the leadership, so other communities who are faced with these same challenges have more appropriate stepping stones to move toward a solution without having to bring it to us like this today.”

Mah added that she appreciated the thoughtful consideration that everyone has given the topic.

“I agree with Jim Porter that I would really like them to work it out,” Mah said. “I think that if you think this is taxation without representation, let’s say we approve this, then the obvious next step for [USD] 113 is to come in and go, ‘I want all of that land where the 120 some kids that we serve,’ and then Katy bar the door. Freedom works and we have it because we are a nation of laws. This board is an elected board and we have to follow the law. That is how we protect freedom. Neither side in this dispute has a lock on the issue of freedom.”

Chairman Haas added when she looks at the affect of the students in the area, she “considers the students in 113 who would no longer call 113 their home district.”

“The families in the area that we’re considering today are already attending the school they want to attend,” Haas said. “If we approve the petition, there is no guarantee that the students of 113 get to stay there. I also disagree to the notion that this is taxation without representation, because when you choose to go to another district that is not your home district, you know that you are not going to have a vote in those school board elections. Again, that is the law and that is the way it works. To Jim McNiece’s point, there will be more closures. I think it’s important that the board remember first of all, you have asked us to get out the red pen. It’s the people in these communities who really know the communities best. I’ve never been to this part of Kansas and I don’t know the community. It is a challenging situation for everyone involved, and I think it is important that we put the students first and that we follow the law and the statute.”

With no more discussion amongst the board, they voted 6-3 to deny USD 115’s petition, with Hershberger, Horst and Hopkins opposed.

The video from the Wednesday, June 12, meeting can be found at https://www.youtube.com/watch?v=Zwg42dTJaG4.

USD 113 Press Release

Following the denial of the Nemaha Central USD No. 115 Land Transfer Petition, Prairie Hills USD No. 113 released a statement commending KSBE on their decision.

The press release reads as follows:

“Prairie Hills USD 113 commends the Kansas State Board of Education (KSBOE) decision to deny a school district transfer petition initiated by Nemaha Central USD 115 after a long, thorough and fair process. Following KSBOE General Counsel Scott Gordon’s thirteen-page recommendation, and demonstrating a preference for local control, the Board voted 6 to 3 to deny the petition after months of legal wrangling.

‘The Board and Mr. Gordon have taken their responsibility very seriously,’ said USD 113 Prairie Hills Superintendent Todd Evans. ‘It has been an exceedingly fair and democratic process. They evaluated the facts, studied the law, took public input, debated the issues in open session and have ultimately ruled in the best interests of Kansas school children.’

‘I’ve practiced law for over two decades and been party to more litigated matters than I care to count. This process has been meticulous and thorough,’ said David Cooper with Fisher Patterson Sayler & Smith, who litigated the action on behalf of the Prairie Hills school district. ‘I commend the board for applying the facts to the law.’

‘This has been a long and exhausting process. It has created great stress in the community, but we are happy with the decision. We appreciate and respect the input and comments from the State Board of Education,’ Evans concluded.”

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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