Richard Iannuzzi, the head of the state teachers union, NYSUT, told the School Boards Association blog, On Board, that Arne Duncan "may be refining his position" on tying charter caps to a state's chances of being awarded "Race to the Top" funds.

Mr. Iannuzzi noted that Secretary Duncan's remarks last week at the national charter school conference, warning against allowing too many second-rate charters, is a sign that lifting the cap may not be so important for states to obtain funding from this program.

Nice try, Mr. Iannuzzi. But there is no such "refining" going on here.

Secretary Duncan's position in favor of lifting charter caps and focusing on quality rather than quantity in the number of charter schools is entirely consistent, and reflects the exact position of President Obama.

The President in his comprehensive education speech last March, said the following:

Right now, there are caps on how many charter schools are allowed in some states, no matter how well they are preparing our students. That isn’t good for our children, our economy, or our country. Of course, any expansion of charter schools must not result in the spread of mediocrity, but in the advancement of excellence. That will require states adopting both a rigorous selection and review process to ensure that a charter school’s autonomy is coupled with greater accountability – as well as a strategy, like the one in Chicago, to close charter schools that are not working. Provided this greater accountability, I call on states to reform their charter rules, and lift caps on the number of allowable charter schools, wherever such caps are in place.

This is visionary and sensible. New York has this very kind of system in place -- except its cap remains. It should be removed once and for all, as it serves no purpose after 10 years when the charter movement itself has matured and proven effective.

Know that when the state closes in on the charter cap, NYSUT will again be on the opposing side of charter schools as it was in 2007 when the cap was doubled, over its objections. Keeping the number of charter schools from expanding denies more children the opportunity given to thousands of students throughout the state.

But Mr. Iannuzzi wants no more -- that much he tells us in yet another reminder that he works for adults, not children.

Peter Murphy
for The Chalkboard

For New York to get federal "Race to the Top" funds, the head of the state teachers union opposes lifting the cap on charter schools, while the outgoing Education Commissioner says we shouldn't be "unduly influenced" by the U.S. Secretary of Education.

This was all part of an informative piece by Marc Humbert today for On Board Online, the weblog for the state School Boards Association (here), on New York's chances of obtaining federal "Race to the Top" funds from the U.S. Department of Education.

Humbert was a long-time reporter and columnist on New York state politics for the Associated Press. He picks up on Education Secretary Arne Duncan's comments earlier this month that New York's chances of securing funds from this program are at risk because of the cap on charter schools and prohibitions on evaluating teachers, in part, using student test scores.

The article quotes Regents Chancellor Merryl Tisch, outgoing Education Commissioner Rick Mills, and NYSUT president, Richard Ianuzzi, among others.

In a nutshell, Chancellor Tisch is careful in her remarks and somewhat complimentary of the state's charter school record.

Mills, whose last day as Commissioner is today, has said as little about charter schools as an education leader can say in 14 years and doesn't disappoint in this article. The commissioner doesn't think the $5 billion "Race to the Top" funding amounts to much, but thinks the state is well positioned.

Mills also doesn't think we should take Secretary Duncan too seriously, as Humbert writes: "New York shouldn't be unduly influenced by Duncan's remarks, said Mills."

Then there is charter school nemesis, Richard Iannuzzi, the head of the state teachers union, who argues that New York shouldn't lift the charter cap, saying it "provides the only semblance of accountability."

Mr. Iannuzzi reveals his ignorance on the enormous level of charter school accountability, beginning with the charter itself, which cannot exceed five years and must be renewed accordingly.

Iannuzzi also showed his interest in having no accountability when it comes to scrutinizing his member teachers using test data since NYSUT's position is to ban the use of scores when making tenure decisions for teachers, which they got the legislature to do for them last year.

Peter Murphy
for The Chalkboard

The state Court of Appeals today ruled 7-0 in favor of the charter school position that the Office of the State Comptroller lacks state constitutional authority to audit charter schools.

Yes, folks, the New York State Constitution means what it says. The Comptroller's Office has limits as to which entities it can audit, and charter schools are not among them. Article V of the Constitution limits that office's auditing power to political subdivisions of the state, which are governments and their agencies. By contrast, charter schools are established as non-profit educational corporations carrying out a public purpose. Importantly, the Court also held that audits of charter schools are not "incidental" to the auditing powers of the Comptroller, which became the main legal argument of the Comptroller's side.

This is an important case that should remind everyone that there are limits to governmental and bureaucratic power, and that auditors cannot do anything or audit anyone they please. Whatever one thinks of charter schools, this case translates to any other non-profit or for-profit entities doing business with the government or carrying out a public purpose, be they a social services organization or construction contractor.

Charter schools have plenty of oversight, including the Regents via the state Education Department, and SUNY and the NYC Department of Education. They get regular monitoring visits, submit numerous reports (including financial), and face an extensive renewal process at least once every five years. There is no oversight void by striking down Comptroller audits.

Today's High Court ruling reverses the Appellate Division decision from January and reinstates the initial Supreme Court ruling in favor of charter schools, issued back in April 2008. To the credit of the Court, they weren't buying the vapid argument of the Appellate Division, which largely took a pass on the constitutional issues involved.

How This All Started
This case may never have been brought had the Comptroller's Office not overreached. After conducting audits of several charter schools, often the findings were trivial and embellished. That approach under Comptroller Thomas DiNapoli was not unique; his predecessor Comptrollers approached auditing the same way, regardless of the entity, to justify their function, pose as the protector of the taxpayer, and elevate their role in public. That's what elected officials do, after all.

By the summer of 2007, the Comptroller's office decided to conduct so-called "performance" audits of charter schools that went beyond financial issues that the Comptroller was charged with carrying out. The 2005 law directed the Comptroller to conduct fiscal audits of school districts, charter schools and BOCES. No such performance audits were envisioned by this law, which was sponsored by the Comptroller himself when he was a Long Island Assemblyman. More galling was that the Comptroller's office admitted that only New York City charters were getting this additional performance audit treatment, not school districts or BOCES.

That was too much. Charter schools (or school districts, for that matter) do not need the Comptroller's office passing judgment on their academic performance, teacher quality, attendance rates, or any other programmatic issue. There are plenty of others to properly do so. No matter. The Comptroller's folks were uninterested in reconsidering their position and dismissive of the concerns of charter schools.

So charters turned to the courts. In reviewing the legal options, it turns out that the Comptroller didn't have constitutional authority to audit charter schools, financial or performance related. This limitation on the Comptroller was most recently upheld by the Court of Appeals in a 1996 case involving the auditing of Blue Cross/Blue Shield, and was used as a key precedent in the charter school case.

NYSUT on the Wrong (Losing) Side Against Charters
It should not be forgotten that the New York State United Teachers (NYSUT) once again opposed the charter school position and sided with the Comptroller, in another example that contradicts its shopworn sound-bite of supporting charter schools. NYSUT was the only outside entity to file an amicus brief in the case, taking the Comptroller's position against charter schools. No surprise there, and a reminder of the anti-charter school politics of that organization, supported in part by the sweat equity of many dues-paying charter school teachers.

Charter schools won an important state constitutional case today that reaffirms the proper balance of governmental oversight and accountability envisioned by the writers of the state Constitution. It also should be a reminder to government officials in any bureaucracy to understand and appreciate their legal limits and proper role.

Peter Murphy
for The Chalkboard

Several publications, including the New York Times and New York Post today report on a charter school teachers contract between Green Dot Charter School in the Bronx and the United Federation of Teachers.


The deal is conceptually simple: More money with more accountability. Teachers get between 10 and 14 percent more pay over the next three years than their NYC district comrades. However, they don't have tenure or seniority rights, or set departure times.

Outgoing UFT president, Randi Weingarten, who shortly will assume her national union leadership role full time, agreed to relax these work rules and got a nice pay bump for her members in return.

On the surface, at least, the charter school did not make any concessions on its ability to manage for academic results, including adjusting schedules and replacing ineffective personnel to ensure children's learning is not shortchanged. This is a critical feature of charter schools in that they must improve and sustain high achievement as they come up for charter renewal at least once every five years. And, they receive less funding on a per pupil basis and cannot afford long, costly labor disputes with overly protected staff.

Well done for both sides!

Peter Murphy
for The Chalkboard

The Syracuse Post-Standard today published my op-ed responding to their June 8th editorial that was critical of the charter school lawsuit to stop audits by the State Comptroller's office.

The op-ed is linked here.

The arguments made in support of this lawsuit should be familiar to Chalkboard readers and charter school operators. Fundamentally, they come down to two points:

1) The state constitution (Art. V) limits the auditing powers of the state Comptroller to political subdivisions of state, which charters are not -- a point since conceded by the state itself.

2) Charter schools have sufficient oversight and monitoring by the Regents and SUNY, and the school district authorizers. Each of these authorizers is subject to Comptroller audits, which can include auditing their role as overseers of charters.

One more point not made in the op-ed, but worth repeating: Charter schools as a whole are not "incidental" expenses of the school districts, which are subject to Comptroller audits -- an argument made by the state to justify full-blown audits of charters. Rather, the Comptroller's "incidental" reach into charters is arguably limited to the extent to which the Comptroller is examining school district payments of charter school invoices based on resident student enrollment. That, in sum, was the argument made by Justice Rose in his dissent to the majority opinion by the Appellate Division last January when it ruled against the charter school position.

We await the Court of Appeals ruling on the appeal by charter schools, which was heard on June 2nd. The final outcome of this case may arrive as early as next week.

Peter Murphy
for The Chalkboard

The state Board of Regents today unanimously approved a new charter school for Albany -- the Albany Leadership Charter High School for Girls -- the 10th for that city.

The Regents have not approved a new charter school for Albany in more than five years, when they approved the KIPP Tech Valley Charter School in 2004, which was previously approved by the SUNY Board. Until today, only three of Albany's charter schools got the blessing of the Regents, with the other two being the Brighter Choice Charter School for Boys and the Brighter Choice Charter School for Girls. These latter two schools were approved directly by the Regents back in 2000 as their answer to SUNY's approval of the ever-dismal New Covenant Charter School.

For the last five years, the Regents refused to approve any new charter schools in Albany, but they've opened nonetheless because of SUNY's ability to override the Regents' refusal and proceed.

SUNY's statutory ability to override the Regents came under fresh attack this year when the new Chancellor of the Regents, Merryl Tisch, publicly came out for legislation to strip SUNY of this power to approve charters on its own (see here for more discussion). The Senate sponsor of this legislation since "withdrew" her bill, effectively killing any chances of enactment.

One of the issues that came out of this debate on multiple charter authorizers, that is, Regents and SUNY, was the Regents' periodic hostility to charter schools, which has been ramped up in recent years. The non-approvals in Albany are a good example, hence, the importance of an alternative charter authorizer like SUNY.

Now, all of sudden, the Regents decide to approve a new charter school for Albany in complete disregard of the recurring opposition of the school district and teachers' union, which they otherwise heeded for five years. Even Regent James Dawson, a reliable "no" vote on charter schools, went along today and voted yes.

On the merits, the first public all-girl high school for Albany is a no-brainer. The Albany Leadership Charter High School for Girls is a small, safe alternative to the Albany High School; which is a low-performing, unsafe place with a high drop-out rate and a low percentage of students graduating on time with Regents diplomas. And, the city already has a similar single-gender charter high school for boys, the Green Tech High Charter School. The new Charter High School for Girls will have a 200-day school year, and is partnering with the Young Women's Leadership Foundation, which supports highly-successful all-girl public schools in New York City.

Perhaps the Regents decided to lay aside politics and union and district opposition pressure and follow the merits by approving the charter school.

Regents' Ulterior Motive?
On the other hand (or in addition to the merits), I suspect the Regents would like to eschew their reputation as unfriendly to charter schools, and this was a first step in that direction. The immediate concern may be Washington: for New York to get due consideration for the federal "Race to the Top" funding, U.S. Secretary of Education, Arne Duncan is sending word that hostility to charter schools doesn't sit well.

More long term, I suspect the Regents ultimately want control of chartering in New York. They don't like SUNY's role and never have. Chancellor Tisch was most obvious and public about this position, but she represents the long-standing view of the Regents. They've recently had to take a step back, but after another year or two of friendly moves on charters, the Regents may revisit the multiple authorizer issue in the state legislature and try and obviate the role of SUNY.

Whatever the motive of the Regents today, they did right by Albany Leadership Charter High School, and the Albany female students who will be the beneficiaries.

Peter Murphy
for The Chalkboard

"New York State United Teachers has not cooperated with requests from teachers for the creation of a bargaining committee and has not been responsive to the concerns of instructional members at the charter school."

This account, from today's Niagara Gazette, is the description from Laurie Munzert, a 2nd grade teacher at the Niagara Charter School. She and her colleagues are trying to drop the union (see Chalkboard account, below) but the union refuses to leave.

Ms. Munzert's description rings all too familiar to the description by teachers from two KIPP charter schools in New York City, who stated last March:

"the UFT sent a letter to the KIPP: Infinity Board of Directors with the goal of beginning collective bargaining on teachers' behalf; the UFT neither consulted nor informed the staff of this request. In addition, a union-initiated grievance has been filed against KIPP Academy without solicitation or support of staff. It is our belief that the active presence of an external negotiating representative could compromise the strong environment of communication and collaboration that is integral to the success of our schools. "

This bossy role-play by the union is being outed by teachers on opposite ends of the state, and they've performed a valuable public education role outside the classroom.

Peter Murphy
for The Chalkboard

What part of "Get Lost" does the NYSUT local in Niagara-Wheatfield not understand?

The teachers at the Niagara Charter School are staging a protest today outside the charter school to oppose being forcibly represented by the Niagara-Wheatfield Teachers Association, the district union local of the New York State United Teachers. The teachers issued a press release announcing the protest, which was reported in today's Niagara Gazette (here).

Last month the charter teachers were told in a ruling by the Public Employee Relations Board that the district teachers union was their representative, pursuant to the Charter Schools Act in state Education Law. The teachers claimed that they had to formally recognize the union under the state's Civil Service law (aka, the "Taylor Law").

The Charter Schools Act (which is Article 56 of the state Education Law) requires that charter school teachers in certain circumstances are automatically deemed members of a separate negotiating unit of the union representing like positions in in the school district in which the charter is located. In Niagara's case, the school's enrollment exceeded 250 in its first year, which triggered this provision.

The teachers have resisted union membership ever since, but the Niagara-Wheatfield teachers union refuses to take "no thanks" for an answer. Instead, the union by law is its "representative" in collective negotiations and will extract dues from the teachers for this unwanted service.

This is truth being stranger than fiction. The Niagara Charter School teachers already are competitively paid, have a great working relationship with the school's administration, and have raised student test scores each year of the charter. They accomplished this without the help of the union, and certainly don't need to pay the union for something it can get on its own for free.

The Niagara-Wheatfield Teachers Union should follow the path of the UFT in New York City and buzz off, and leave the Niagara charter school faculty to its own devices. They are not wanted. The UFT let go of its representation of KIPP Infinity teachers, likely because they feared a PERB ruling in favor of the decertification petition by those teachers (a different proceeding than what the Niagara charter teachers filed and lost before PERB).

Charter Schools Act Union Provisions A Sausage Mess
The union provisions in the Charter Schools Act represent a classic example of legislative sausage-making since they were the result of negotiations between then-Gov. George Pataki, who proposed no union mandates, and the state legislature that wanted union charter schools as a sop to the powerful teachers union.

The whole compromise is flawed and constitutionally suspect. For instance, charter schools and school districts by design are competitive with each other; that is, they compete for many of the same students and the public funding attached to those students. This is why school districts and unions have long opposed charter schools - they want the public dollars to remain with them rather than go with a student to a charter school.

Yet, the same law establishing this competitive design provides that the same union represent "like positions" in a competing entity. This conflict of interest in the union statutory mandate was never more obvious than this year during the state fiscal crisis when the teacher unions urged the state legislature to freeze the charter funding formula -- hurting their own dues-paying union members in charter schools.

Why did the union bosses hurt their own members? Because that same formula freeze saved $50 million for school districts which employs a lot more of their teacher union membership. The choice was easy.

Niagara teachers also have a choice to make. They can go the KIPP Infinity route and petition PERB to decertify the NYSUT local. They also can file an Article 78 proceeding in state Supreme Court on First Amendment, free assembly grounds; or they can go to the same Charter Schools Act which also provides "reasonable access" to a challenging organization to represent them instead of the Niagara-Wheatfield Teachers Association.

Of course, the Niagara Charter School teachers should not have to take so many steps, costing them time and money, for trying to exercise their liberty as professionals.

Peter Murphy
for The Chalkboard

Several publications, including the Daily News and New York Post this morning, and Gotham Schools (here) over the weekend discuss the implications of the stalemate in the New York State Senate on mayoral control of the New York City schools, which expires June 30th.

Joe Williams, Executive Director of the Democrats for Education Reform, and I are quoted in the Gotham Schools' story.

The state Assembly earlier this month passed legislation to continue the structure largely as is, with the NYC Mayor controlling the majority of appointments on the Panel of Education Policy.

The new Senate Democratic leader, Sen. John Sampson, opposes mayoral control and wants changes. The problem, however, is that even if the Senate went into session (a big if), Sen. Sampson is not in position to affect changes based on the 31-31 split and assuming all his fellow Democrats agreed with his changes. Moreover, Assembly Speaker, Sheldon Silver, reiterated his disinterest in returning to Albany to amend his very reasonable bill to accommodate the Senate.

The Speaker's position is exactly right especially given the fact that there is no way of knowing if the Senate will do anything, including gavel in, much less enact a separate bill.

Gov. David Paterson, not to be left out of the discussion, is talking about calling for a "special session" to bring the legislature back to Albany this week to enact the mayoral control legislation and other bills requested by other local governments. The Governor can make the legislature return to consider his agenda of bills, but he can't make them vote on anything.

The saga continues.

Peter Murphy
for The Chalkboard

Last March The Chalkboard reported that teachers at KIPP Infinity Charter School in Harlem submitted a unanimous petition to the state Public Employee Relations Board (PERB) to decertify membership with the United Federation of Teachers union. Last Friday, the New York Post reported here that the UFT agreed earlier this month and had "voluntarily withdrawn" from its representation of the Infinity faculty without a protracted PERB hearing.

In effect, KIPP Infinity's teachers told the UFT to take-a-hike, and UFT complied.

The UFT doesn't "voluntarily" do anything like this, so the safe bet is that the union was going to lose before PERB. Cheating the hangman avoids a PERB decision that could be seen as humiliating the union.

It's hardly humiliating for teachers to choose not to be unionized; most teachers in charter schools in fact have done so. Certainly the UFT would not want to see this trend continue with more charter faculty decertifying, especially after the union and its state parent, the New York State United Teachers, ramrodded a charter school funding freeze through the legislature for the 2009-10 school year.

The KIPP Infinity teachers have shown that the union is supposed to be the servant, not the boss, and that if you are unsatisfied with such representation, you don't have to stand for it. You can drop them.

This was not the first charter school to kick out a NYSUT local. The Western New York Maritime Charter School faculty in Buffalo effectively fired NYSUT and formed their own school-based teachers' association. This means that their dues truly go towards "representing" them before charter management and doesn't subsidize the union's anti-charter school legislative agenda in Albany, unlike the teachers at every NYSUT/UFT charter school.

At least one other charter school's faculty recently manifested impatience with NYSUT's behavior, that being the Charter School for Applied Technologies, which conducted a protest last month before the union's headquarters in downtown Buffalo.

As long as NYSUT takes an adversarial stance toward charter schools, teachers deserve better and can do better, as KIPP Infinity and WNY Maritime have shown.

Peter Murphy
for The Chalkboard

Last week the State University of New York's Charter Schools Institute celebrated its 10th anniversary by hosting a luncheon at the Grand Concourse Charter School in the Bronx. The Institute is the administrative arm of the SUNY Board of Trustees to implement the Board's responsibilities under the New York Charter Schools Act.

The Institute was actually founded in January 1999, just weeks after the state legislature approved the Charter Schools Act, which authorized charter schools and empowered SUNY to approve and oversee up to 50 new charters. (School districts and the Board of Regents were authorized for another 50 schools; in 2007, the legislature doubled the respective numbers of charter schools for a combined total of 200.)

SUNY chose June as the time to have the ten-year celebration to coincide with its annual renewal ceremony to recognize and congratulate those charter schools receiving a maximum five-year renewal without conditions. It was a delightful two-hour event with SUNY Board Chairman, Carl Hayden and newly-appointed SUNY Chancellor, Nancy Zimpher speaking. A pre-taped video of Gov. David Paterson was shown, where the Governor acknowledged that he opposed the Charter Schools Act in 1998 as a state senator but changed his views by 2002 and has supported charter schools ever since.

Students from the several charter schools receiving five-year renewals also performed splendidly, including the choir from Grand Concourse Charter School.

Other SUNY Trustees were in attendance, including Robert Bellafiore, himself a former Institute executive director; and former SUNY Vice Chairman, Randy Daniels, who spoke powerfully of education empowerment and excellence and the role of charter schools in making that a reality for thousands of students throughout the state.

Charter Schools Institute Beginnings

The Institute's creation was the brainchild of its first Director, Scott Steffey, at the time a SUNY Vice Chancellor; and two SUNY Board members, Edward Cox and Randy Daniels. Trustees Cox and Daniels were named co-chairmen of the SUNY Charter Schools Committee while the Institute was empowered to administer SUNY's new charter school responsibilities apart from SUNY's large central administration bureaucracy, which played no role. This was a brilliant move that enabled the Institute to operate efficiently and independently while having direct accountability to the SUNY Board.

I was the first staff person hired by the Institute in January 1999, and served as its Vice President overseeing the review and approval of new charter schools until 2001. We processed more than 150 applications in the first two years, resulting in nearly two dozen charter schools approved. As these numbers show, we said "no" to a whole lot of applications for charter schools by establishing a rigorous, non-partisan and professional review process.

Nearly all the charter schools approved in these early years continue their superb performance today, including Tapestry in Buffalo, Eugenio Maria de Hostos in Rochester, Bronx Prep, Roosevelt Academy and many others. The process, however, wasn't perfect as some schools were since closed while others given conditional renewals. These closures do, however, also reflect the high standards and rigor that the Institute has demanded from the beginning.

National Recognition
The Charter Schools Institute has an overall impressive ten-year track record. It's certainly made its share of mistakes (yes, even when I was there!) but now has received national recognition by the current U.S. Secretary of Education, Arne Duncan. More impressive to me, however, is the Institute's stated willingness to further improve itself and not stand still -- the very thing charter schools must do to survive and thrive.

The current Institute Director, Jonas Chartock, appointed just last year, announced at the ten-year event that the Institute is exploring ways to streamline its review and oversight process, which is more essential to overseeing its 64 approved charter schools, and growing. This is particularly important to allow charter schools to operate independently and mitigate the bureaucratic penchant for oversight to become superintendent-like micromanagement. Chartock also announced the establishment of an Institute policy center to provide more data and research for policymakers and charter schools alike to access.

New York State's charter schools have been well-served overall by having multiple charter school authorizers, the Regents, SUNY and school districts. The SUNY Charter Schools Institute has confirmed the wisdom of that design in the Charter Schools Act.

Peter Murphy
for The Chalkboard

The Senate Republicans yesterday offered the 31 Democrats a power-sharing "bipartisan operating agreement" stipulated on Sen. Pedro Espada as the Temporary President and the Majority Leader position occupied by Republican Sen. Dean Skelos. Both those positions control the calendar of bills getting a floor vote and also select committee chairs.

The document reads that committee chairs will be named "on a bipartisan basis" and that staff allocations will be spread evenly among senators.

This is a reasonable, good-faith document that should be the basis of negotiations. The obvious problem for the Democrats is that they refuse to recognize the Senate vote earlier this month that installed senators Espada and Skelos to their respective leadership positions. As long as both individuals control the calendar and committee assignments, it's hard to imagine the Democrats budging, regardless of how bipartisan the leadership would be in running the Senate.

Since the 31 Democrats must harbor special feelings for Sen. Espada for his joining with Republicans, and were unable to persuade him to return (as they did with Sen. Hiram Monserrate), what if he was not the Temporary President? If, for example, Brooklyn Sen. John Sampson, the new day-to-day head of the Democratic conference, or Sen. Malcolm Smith, the recognized Senate Temporary President, served in that position with GOP Sen. Skelos serving as Majority Leader, this "bipartisan" agreement actually could work.

Sen. Sampson and Sen. Smith have been appointed by their Democratic colleagues to leadership roles and Sen. Skelos was been given a similar role by his fellow Republicans last year. Sen. Espada, by contrast, has gone back and forth between sides during his Senate career, though the Republicans did vote for him this month to be Temporary President.

Two Options to Organize the Senate:
1) Senators Sampson or Smith, along with Sen. Skelos, could make the Senate work under this proposed agreement since it's hard to see the Democrats accepting their former colleague, Sen. Espada, in any leadership position despite the fact that a 32-vote majority put him there -- a vote that the court refuses to invalidate.

2) Alternatively, a bipartisan operating agreement could have a leadership trio of senators Espada (remaining as Temporary President), Skelos and Sampson or Smith to decide bills getting a floor vote, member committee assignments (including committee chairs) and staff allocations. In effect, any one of the three could veto a decision or recommendation by the other two. This would be as bipartisan as it gets, with no "majority" or "minority" conference since there really is neither in a 31-31 Senate with a vacant Lieutenant Governor position. While three people leading anything would be cumbersome and contentious, it would be movement, nonetheless.

It seems the only worse thing than either option is the current situation: stalemate and inaction.

Peter Murphy
for The Chalkboard

Reminder: The Chalkboard blog is hosted by the NY Charter Schools Association, but the views expressed on this blog do not reflect the views or positions of the Association. The views expressed on The Chalkboard are solely those of the author(s).

Senate Democrats have proposed a power-sharing plan with the Senate Republicans allied with Sen. Pedro Espada, Jr. The plan would create a six-member conference committee of the whole with equal membership from both sides and a rotating leadership.

Espada and the GOP are uninterested in discussing any power-sharing role until the Democrats formally recognize the new leadership voted in last week, that of Temporary President, Sen. Espada, and Majority Leader, Sen. Dean Skelos.

Until something gives, the state Senate is deadlocked and nothing will get done.

The 30 Republicans and Sen. Espada claim leadership of the Senate, but will have difficulty implementing anything administratively, much less pass legislation, absent cooperation from the 31 Democrats.

Now Sen. Espada is claiming the state Constitution gives him, as President of the Senate, the authority to cast two votes to break a tie or reach a 32-vote majority: one as a senator and the other as the presiding officer in the absence of the Lieutenant Governor. This is a dubious claim, but based on the somewhat ambiguous constitutional language and even Black's Law dictionary. If he and his GOP colleagues attempt to conduct Senate business with Sen. Espada casting two votes, the courts could no longer punt on the issue and would have to intervene since it involves constitutional interpretation rather than just Senate rules.

Whither NYC Mayoral Control of Schools?
With 31 votes on each side, both sides need to reach a power-sharing agreement if they are serious about governing. At the very least, leadership from both sides should meet as a temporary conference committee and agree on which bills they should pass, pass them, and go home. This reasonable position was basically articulated this morning by Democratic Sen. Eric Schneiderman. The problem, he reminds us, is that the "list" of bills is technically generated by the Temporary President of the Senate, and that's the rub. Neither side is willing to agree on who occupies the office.

The list of bills to act on need not be long or controversial and could address time-sensitive, local government issues such as continuing mayoral control of the New York City school system, which expires June 30th. The state Assembly already crafted a bill to accomplish this which it will pass today and which has the support of Mayor Bloomberg (who strongly supports charter schools). This same measure has been introduced in the Senate by Queens Republican Sen. Frank Padavan.

"When there is a tie, it's incumbent on all of us to move toward a temporary coalition government," Bronx Democratic Sen. Jeff Klein told the New York Post. He is right. Unfortunately, that doesn't mean it will happen any time soon.

Peter Murphy
for The Chalkboard

This afternoon state Supreme Court Justice, Thomas McNamara, dismissed the litigation on whether last week's vote to change state Senate leadership was valid.

The court wanted no part of this case, as any ruling was a guarantee to upset at least half the Senate that would be on the losing side. No Solomonic "split the baby" option here.

It's refreshing to see a judge refuse the temptation to rule from the mountaintop, especially on the activities of another branch of government. Judicial restraint is in order here, even if it means uncertainty and the continuation of the "circus" (as the New York Post describes).

What happens next for the Senate?

First, a reminder of where things stand:

1) Sen. John Sampson is the new Democratic leader, effectively replacing Sen. Malcolm Smith. With the return of Sen. Hiram Monserrate, that conference has 31 members. Technically, Sen. Smith retains the Temporary President and Majority Leader title since the Democratic conference views last week's vote as illegal (thus, the basis of the lawsuit just dismissed). Yet, with only 31 votes, they can't vote in Sen. Sampson's new title.

2) Sen. Pedro Espada remains joined with the 30 Republicans, making for an evenly split chamber. Sen. Espada views himself as the Temporary President, with GOP Sen. Dean Skelos as the Majority Leader.

3) Since Justice McNamara dismissed the case, it's left for both sides to negotiate some sort of power sharing arrangement in order for the Senate to conduct business. Senate rules traditionally hold that the Majority Leader controls the Senate's budget, staff allocations, committee assignments, who chairs the committees and which bills go to the floor for a house vote. Will Espada and Skelos attempt to act out these roles with the 31 Democrats refusing to acquiesce? Seems that's the question for the moment.

4) Will senators Espada and Skelos try to exercise the powers of the majority (even though they cannot pass bills on the floor), and how will they? Will they attempt to oust staffers and expand their own, and what if the other side refuses?

5) Gov. David Paterson has offered to preside over the Senate like he did when he was Lieutenant Governor. Ah, hmmm. The LG under the state constitution is an officer of the Senate, while the Governor is not. If the Governor walks upstairs to the Senate chamber, his presence has no practical or legal effect. He should remain on the second floor and try and mediate from there.

Future Possibilities: Let us count the ways
Secondly, it's June, not January. The 2009 scheduled legislative session is over this week. Aside from mayoral control legislation over NYC schools, which the Assembly has pointed the way, there is little if anything the Senate actually needs to do. They could pack it in and wait for one of the following events in the next six months to affect the 31-31 tie:

a) Senator X (Pick One) gets convicted of a crime and must vacate his or her seat.
b) Senator Y (Pick Another) decides to switch sides, or switch back.
c) Senator Z dies of natural causes, which is not uncommon in recent years.
d) Republican Senator(s) Q gets an offer he can't refuse by taking a juicy, higher paying job in the Paterson administration or, a more tempting, comfy college presidency at a SUNY campus near his home, (driver included), resulting in a final average salary boost to his pension.
e) Gov. Paterson gets an ambassador appointment from President Obama, meaning either Sen. Smith or Sen. Espada becomes Governor.

No doubt there are more scenarios that I've missed as possibilities for the next six months (some more realistic than others), which is nearly a lifetime in politics.

Until then, we shouldn't expect much out of the state legislature affecting charter schools or most other issues. In this vacuous climate, that's probably a good thing.

Peter Murphy
for The Chalkboard

Gary Crosby announced he is departing his job as the Chief Financial Officer and Chief Operating Officer of the Buffalo Public Schools, after five years on the job.

What better description of someone wearing two hats than "Czar" of the district! After all, not one, but three district officials will assume his responsibilities, as his job will be divvied up.

Crosby's departure was reported yesterday in the Buffalo News by veteran reporter, Peter Simon (here), in an article that can be best described as a press release for Gary Crosby.

Simon is an excellent and fair reporter, so I was surprised that this piece read so fawningly of Mr. Crosby's tenure with the district, e.g., Crosby "stabilized the [district's] finances", "expanded classroom initiatives" (no examples given), "avoided forced layoffs." And, not one, but multiple quotes were proffered from Mr. Crosby and Superintendent James Williams.

This write-up made me long for the cacophonous Buffalo Teachers Federation President, Phil Rumore, for balance and perspective.

Whatever the accomplishments of Mr. Crosby's leadership in the district, this article also omits mention of the omnipresent Buffalo Control Board, a creation of the state legislature to oversee and keep a lid on city and school district finances. The luxury of having a Board such as this is a CFO's best friend, which gives him cover and backing to make necessary decisions.

Gary Crosby was a product of the private sector before his five years at City Hall. Unfortunately, this pedigree did not favorably influence his views of charter schools, which were indistinguishable from a lifelong bureaucrat. That is, charters he viewed as an extra cost and burden to the district, even though the district's lopsided 80 percent state aid ratio more than nullified this impact since charters get only two-thirds of what district schools spend per student. This funding inequity was exacerbated by the state "freeze" in the charter funding formula supported by Crosby that cut $10 million from Buffalo's charter schools. That money instead remains in the district's bank account.

More recently we heard from Gary Crosby when he published an op-ed last month in the Buffalo News (May 13) praising audits by the State Comptroller's office, and was critical of charter schools and me, by name, for suing the Comptroller to stop such audits of charters. This article was written on the eve of the Comptroller's auditing the Buffalo district, so it read to me like he was looking to soften up the auditors for what may be found. Crosby also was poised to throw his predecessors under the bus for what he described as the "many, many years of neglect" he inherited when he assumed the CFO job -- in 2004.

The OSC audit of the Buffalo district's finances will be out long after Mr. Crosby's imminent exit. His successors can take a page from his op-ed and now blame him for the problems the Comptroller auditors find.

The Chalkboard hasn't written about any other school district finance/operations officer, so I thank Gary Crosby for the opportunity and the fun of all that. I also wish him well in his next professional endeavor, and best wishes to his three successors.

Dasvidania to the Czar.

Peter Murphy
for The Chalkboard

Geoffrey Canada, who heads the Harlem Children's Zone nonprofit organization, also has founded two charter schools in upper Manhattan. One of his several hats is he is a trustee of the group "LearnNY," an outfit set up earlier this year to push for renewing the New York City Mayor's control of the school system.

Geoff Canada just released a statement praising the legislation introduced by the leadership in the state Assembly that would renew mayoral control. Canada praises Assembly Speaker, Sheldon Silver and Education Committee Chairwoman, Catherine Nolan for "preserving the accountability that makes the system work," even as they added some measures to increase transparency and parent voices.

Mr. Canada's endorsement is reassuring for charter schools most of which have been supplied district-owned space, thanks to Mayor Bloomberg and Chancellor Klein. The absence of available district space would mean far fewer charter schools since they don't get building aid and real estate is far more expensive in the City. With reasonable notice of intent to use space, and the public hearings already mandated in the Charter School Law, it is encouraging that the Assembly appears to have done right by all concerned, including charter school founder, Geoff Canada. Of course, the devil is in the details, but LearnNY's backing is significant.

It also is critical that the reasonableness of the Assembly's bill to largely continue the current powers of the Mayor over the City school system makes it that much easier for a divided and chaotic Senate to oblige without much further thought. While the Senate negotiates power-sharing in the brave new world of an evenly-divided house at 31-to-31, the positive aspect of the Assembly's mayoral control bill should make the Senate's job much simpler.

Peter Murphy
for The Chalkboard

New York is headed for even deeper unchartered legislative waters.

First, you had an attempt last week to change leadership and majority control in the state Senate, with two Democrats switching sides to join with the 30 Republicans in the 62-seat house. Two is all it took to change a 32-30 Democratic majority.

Then, later in the week, one of the two Democrats, Sen. Hiram Monserrate, had second thoughts about his switch. It turns out that no other Democrats were bolting and, faced with unrelenting pressure from fellow Democrats in Albany and Washington, Sen. Monserrate is now back in his party's fold.

That means that in a 62-member house, it is 31 Democrats on one side, and 30 Republicans and Sen. Pedro Espada Jr. on the other side, as of today, at least.

Now, a new name has surfaced: Sen. John Sampson of Brooklyn, who is being spoken of as the new leader of the 31 Senate Democrats, to replace Sen. Malcolm Smith, who may end up technically remaining as President and Majority Leader if the court upholds his claim. This change was reportedly demanded by Sen. Monserrate as his price for rejoining the Democratic side.

At this writing, the Appellate Division court in Albany is hearing arguments from both sides about who the real Senate leaders are, either Sen. Smith as President and Majority Leader or, on the other side, Sen. Espada as President with Republican Dean Skelos as Majority Leader.

It is unprecedented for a 31-31 tie in the Senate. Added to this perfect storm is the absence of a Lieutenant Governor to break any tie. It takes 32 votes to approve any bills and to decide on the Senate leadership.

Obviously, more news will follow. If the court upholds the current make-up of the Senate leadership decided last Monday, then Senators Espada and Skelos will control matters, sort of. They can decide what bills go to the Senate floor, but cannot determine the outcome without the other side agreeing since there will be every incentive for the 31 Democrats to stick together and do nothing to legitimize the takeover.

Negotiations between sides will continue to make something out of this hash. With the time it will take to sort this through, it's hard to envision anything getting done this month as the legislative session is scheduled to conclude.

Mayoral control of city schools expires June 30th. To avoid the chaos of that control lapsing, the Senate could well adopt whatever the Assembly passes, then get outta dodge.

Unchartered waters, indeed.

Peter Murphy
for The Chalkboard

Not so fast.

A state Appellate Division court intervened at the request of Senate Democratic Leader, Sen. Malcolm Smith, by imposing a temporary restraining order on Sen. Pedro Espada assuming the office of Temporary President of the Senate.

Elizabeth Benjamin's blog, hosted by the Daily News, reports on this on other developments here.

Sen. Dean Skelos, the Majority Leader voted last Monday by the new coalition, downplayed the court's move by saying it only affects Sen. Espada's title and still allows the Senate to convene.

The story continues ...

Peter Murphy
for The Chalkboard

Sen. Pedro Espada, Jr. said at about 5:00 p.m. that the new Senate Majority Coalition is strong and "growing stronger." His Democratic colleague, Sen. Hiram Monserrate, who joined him in switching sides, emerged with him and Republican Sen. Dean Skelos to say they are the new Majority and sticking together.

Earlier in the day Sen. Monserrate was reported as saying he was reconsidering joining the new majority coalition and returning to his Senate Democratic conference. A couple of hours behind closed doors with the Republicans and Sen. Espada appear to have erased those second thoughts.

There is no sign yet that the Senate Democrats are giving up their fight to retain their majority.
Senate Democratic Press Secretary, Austin Shafran, earlier today released this statement:

"The Temporary President and Majority Leader, Senator Malcolm A. Smith, was elected to a two year term pursuant to a resolution passed by a majority of Senators in January 2009. The purported coup was an unlawful violation of New York State law and the Senate rules and we do not accept it. The Senate Majority is fully prepared to go back to the people's work, but will not enter the chamber to be governed by unlawful rules. We plan to file an action for a temporary injunction to enjoin the Republicans from illegitimately usurping authority from the people of New York."

At this point, if a court refuses to intervene and no more second thoughts emerge, it will be a new 32-30 majority in the Senate consisting of 30 Republicans with 2 Democrats, outvoting 30 other Democrats.

This story is not over, and it will hardly be business-as-usual very soon. The Senate plans for session to resume tomorrow. That will be interesting, to say the least. The one big issue the Senate must act on is whether the New York City Mayor can still run the city school system, as such authority expires June 30th.

About that $30 Million for Charters
The commitment by Sen. Malcolm Smith as majority leader to restore $30 million of the $50 million cut from 2009-10 charter school funding looks far less certain than it did last week. If this coalition holds and Sen. Smith no longer is leader, charter schools will have to focus on Gov. Paterson to implement this commitment as he also backed the restoration. Whatever happens in the Senate, Gov. Paterson is still Governor.

Peter Murphy
for The Chalkboard

The new Senate Majority just got very tenuous as the coalition of 30 Republicans and two renegade Democrats may be unraveling at this writing.

Sen. Hiram Monserrate, one of the two Democrats who joined with Republicans last Monday, this afternoon told reporter, Josh Robin of Capital News 9, that he's having "second thoughts" about switching sides.

That likely explains the delay in the new Senate Majority's scheduled press conference, which was suppose to occur at 2:30 and hasn't come off yet as of 4:00 p.m. Senators of both parties remain behind closed doors in full arm-twisting mode.

Then there is another wrinkle, a legal one: Sen. Malcolm Smith was elected by the Senate last January to a two-year term as Temporary President and Majority Leader. It's not yet clear that he can be unelected to that office and the Senate Democrats may now be pursuing a court injunction to invalidate Monday's vote installing a new Senate President and Majority Leader.

Drama and chaos continue on the south side of the Capitol's third floor, where the Senate chamber is located. There are no session or committee meetings. Just hoards of people, including reporters, staffers and fascinated observers wanting to say there were "there."

So, by day's end it could turn out that Sen. Monserrate returns to the Democratic fold, making it a 31-31 split in the Senate: Democrats on one side, and Republicans and Pedro Espada on the other. In addition, Sen. Smith may end up remaining as Temporary President and Majority Leader if a court holds that his two-year term cannot be undone involuntarily.

Peter Murphy
for The Chalkboard

The State Senate had a day never before seen in memory when two Senate Democrats, Pedro Espada of the Bronx and Hiram Monserrate of Queens joined with all 30 Republicans to change majority control of that chamber from Democrat to Republican.

Sen. Espada was then elected the new Temporary President of the Senate, and Dean Skelos, a Republican from Nassau County, was installed as the Majority Leader. Both positions had been held by Sen. Malcolm Smith of Queens.

Since January, the Democrats had held a 32-30 majority of the 62-member Senate, after several members, including Espada and Monserrate, had flirted with joining the Republicans but opted to form the first Democratic Senate majority in 44 years. That now appears at an end with just the two Democratic members changing sides to form a new majority with the Republicans.

With two weeks remaining in the 2009 session, remaining issues appear to be up in the air as committee meetings have been called off, and committee chairpersons likely will shuffle, along with staff allotments. With a change in majority control from the last election, committee heads changed, and staff and office space changed with it, as most Republican staffers were laid off by the end of March. Now, that will all reshuffle, assuming the leadership change holds.

The Democrats are not going easily and are bringing a lawsuit to stop the takeover. The grounds appear to be how the vote was taken, and whether the Senate itself was technically still in session. I'm dubious on the willingness of the courts to involve itself in an internal dispute in another branch of government.

Gov. David Paterson and Assembly Speaker Sheldon Silver are highly critical of the change and vowing support for the Senate Democrats to hold on. What will continue in the hours and days ahead is that Senate Democrats will look to get their two members to reconsider their switch and return to the fold. A big chit they have is that senators Monserrate and Espada will face certain Democratic primary races next year if they remain joined to Republicans.

What of Charters?
How will this majority change affect charters schools? Charter schools enjoy support from senators of both parties, including Senators Espada and Skelos. Charter schools should continue to work with their elected representatives to inform them of their school and express their needs.

The big question is the status of the $30 million funding restoration promised last April by Senate Majority Leader, Malcolm Smith, who has always been a strong ally of charter schools. The process for distributing this funding had not yet begun. However, Gov. Paterson also supported this restoration, and he will be the key person to move this money if the Senate leadership change holds.

Such a narrow difference in party membership in a legislative house is unusual in New York, and with it the political intrigue and uncertainty increases. That was certainly the case during the post-election intrigue when majority control hung in the balance. Here we go again. In the coming days, this story will change on the hour.

Peter Murphy
for The Chalkboard

This afternoon the state Court of Appeals, the highest court, heard oral arguments on the case brought by charter schools to stop audits by the Office of the State Comptroller. The dynamics of how the court functions were very interesting to me as someone who has never sat through a hearing like this and doesn't pretend to know if the line of questioning necessarily works in favor of the charter school side.

The lawyers on both sides, charter and the state, do not speak long without getting peppered by questions from the judges in a random, indiscriminate way. The judges also take an adversarial position with both sides either because they are genuinely skeptical, or want the case made for the side they are inclined to support -- it's not easy to tell.

It may seem a quaint notion in modern America, but constitutions at the federal and state level generally limit governments from doing things, and assign powers with such limits. In this case, the New York State Constitution (Article V) limits Comptroller auditing power to political subdivisions of the state, that is, governmental entities. Charter schools are not governments; rather, they are non-profit educational corporations which are incorporated by the Board of Regents.

The Comptroller's office makes no distinction between charter schools and school districts, and the state lawyer, Deputy Solicitor Andrew Bing, did not concede any limits with respect to charter schools. Charters are public schools spending mostly public money to fulfill a public purpose.

All true, of course, but these characteristics do not give free rein to the Comptroller to audit, if the constitution means anything, with all due respect to Mr. Bing. Though Article V of the constitution dates back several decades, the case law on the Comptroller's auditing power is more recent. A 1996 Court of Appeals ruling struck down the Comptroller' attempt to audit Blue Cross/Blue Shield, which handles hundreds of millions in public dollars (Blue Cross & Blue Shield of Central N.Y. v. McCall, 89 NY2d 160 [1996]). Instead, it is the job of the state Insurance Department to oversee and regulate Blue Cross and the expenditures of public funds. If the Department isn't doing an adequate job of oversight, the Comptroller can investigate the Department, not the Corporation, Blue Cross.

Similarly, charter schools have plenty of financial oversight from the state and city education departments and the SUNY Charter Schools Institute. These entities review school financials in a timely basis, including internal controls at schools, and make judgments about how public funds are being spent by the schools.

Just How Effective is the Comptroller?
One of the frustrating aspects to this whole case is that the Comptroller's work is assumed to be a good thing. While the arguments being made by charter schools are focused on the constitutional issues, Comptroller audits should not always be assumed as positive or effective.

As a practical matter, Comptroller audits oftentimes are a waste. The auditors generally are in search of problems at a given place for months and will site the most trivial issues to justify their work. Audit findings often ignore the context of a problem since it makes for a great press release for the Comptroller to say, for example, he discovered charter school teachers went on a school-financed trip to a Carribbean island.

What is deliberately overlooked in this example was the Comptroller doesn't acknowledge that this trip made by teachers at the KIPP Academy Charter School in the Bronx, one of the highest academically performing schools in the entire state was paid for with the millions of dollars it fundraises to reward teachers for working 40 days more per year than their district counterparts.

Too much context in audits, and the fairness that goes with that, diminishes the Comptroller's usefulness and the political benefits to that job.

Peter Murphy
for The Chalkboard