February 12, 2010
Dr. Eric J. Smith Commissioner of Education Florida Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399 Dear Dr. Smith: This is a formal complaint regarding Dr. Arthur Johnson, Superintendent of the School District of Palm Beach County based upon his apparent violations of the Code of Ethics of the Education Profession in Florida, Rule 6B-1.001, F.A.C.. More specifically, the record shows that Dr. Johnson has violated Rule 6B-1.006(4)(b), F.A.C., Principles of Professional Conduct for the Education Profession in Florida, which provides: “Obligation to the public requires that the individual: (b) shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.” Dr. Johnson’s actions have also violated the Rules of the School Board of Palm Beach County, particularly Policy 3.02(5)(c), Code of Ethics, Misrepresentation or Falsification, and Policy 3.45 on Promotional Practices. These claims of ethical violations by Dr. Johnson arise from his seemingly intentional misrepresentation to the School Board and the Public regarding the funding source of the Chief Academic Officer position (“CAO”) and his failure to follow District policy when he filled that position with a new hire. More specifically, Dr. Johnson’s violations concern the funds appropriated in the hiring of Jeffrey Hernandez for the position of CAO. At the last three (3) regular School Board meetings (Nov. 2009, Dec. 2009, and Jan. 2010), the Board has been presented with information by public speakers on both Agenda and Non-Agenda items that indicate that the School District may have been supplanting Federal Title I funds. As explained in more detail below, the record shows that the salary of Jeffrey Hernandez, CAO, was to be funded with Title I monies (50%), IDEA monies (25%) and operating funds (25%). Prior to Mr. Hernandez being appointed, the CAO position had been fully funded through the District’s Operational Funds. This change of the source of funding is supplanting. At the November 21, 2009 School Board meeting, following comments by the Public regarding this supplanting of funds, it was stated that there was no supplanting because the CAO position was being paid from operational funds. Board Member Barbieri then questioned Dr. Johnson regarding the funding source for the CAO position. He noted that Agenda Item #11, Personnel Agenda for the April 8, 2009 Board Special Meeting and Workshop re: Academics (see “Agenda Item #11, Spec Mtgs and Workshops re: Academics for April 8, 2009” attached hereto as Exhibit A), which
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presented Dr. Johnson’s recommendation to transfer Ann Killets from the CAO position to the newly created Chief of Staff (COS) position and hire Mr. Hernandez as CAO to replace Ms. Killets, did indeed call for the funding of the CAO position from Title I funds: Financial Impact: The FY09 net financial impact to the School District for the attached 2 transactions is $27,744.00 which is funded from federal Title monies. For FY10, the Chief of Staff position will be funded from the operating budget (75%) and from federal Title monies (25%). The Chief Academic Officer Position will be funded from federal Title monies (50%), from federal IDEA monies (25%), and from the operating budget (25%). Mr. Barbieri pointed out that this would be an improper use of Title I funds. In response, Dr. Johnson stated: “Mr. Barbieri, I have been advised by staff that at that meeting there was a subsequent amendment made by the Board to not take it out of stimulus money because it would ultimately curtail itself in two years, we can certainly check that”. Board Member Hill then commented that such a significant amendment would be addressed in the Minutes for the April 8, 2009 Workshop and requested that this matter be investigated. The official Board Minutes for the April 8th meeting stated that Dr. Johnson’s recommended Personnel Agenda was approved as submitted. (See “Minutes of April 8, 2009 Board Special Meeting and Workshop re: Academics,” attached hereto as Exhibit B). The Minutes do not reflect that any amendments were made to the Personnel Agenda (Item #11). Further, there was an attachment to Agenda Item #11 which was a response to Board Member Robinson’s request for additional information to explain how the net of the 2 transactions could possibly be $27,744. Dr. Johnson stated in the response: The CAO position is currently funded at 100% from the operating budget. Funding will remain in the position through the end of FY09 (June 30, 2009). The new position (Chief of Staff) has an effective date of May 4, 2009, and therefore, requires funding for 4 pay period in FY09. That amounts to $27,744. Those dollars will be provided by Title funds remaining in the FY09 Title Budget. For FY10, the funding stream is as listed below for the two positions in question: CAO: 50% Title I, 25% IDEA, 25% Operating CSO: 75% Operating, 25% Title I
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Upon review of the official Board Meeting DVD, audiotapes and Minutes from the April 8th Workshop/Special Meeting provided by the School District, it was discovered that there were no amendments to the Personnel Agenda nor any other part of the Meeting regarding the source of funding for the CAO position -- the Personnel Agenda was approved as submitted by Dr. Johnson. At that Meeting, Dr. Johnson also presented for the Board’s approval the COS job description, the transfer of Mrs. Killets to that position and the hiring of Mr. Hernandez as CAO pursuant to Agenda Items #10 and #11. While (Personnel) Agenda Item #11 presented the transfer of Mrs. Killets and the hiring of Mr. Hernandez, (Job Description) Agenda Item #10 presented the submission of three (3) new job descriptions: COS, Area Director, School Accountability, and Instructional Specialist. (See “Spec Mtgs and Workshops re: Academics, Agenda Item #10, Special Meeting on Job Descriptions,” attached hereto as Exhibit C). At the time the Superintendent was making recommendations for these three new administrative positions, the District was under a hiring freeze for non-instructional employees. (See “Superintendent’s Budget Message, September 10, 2008,” attached hereto as Exhibit D) The DVD of the April 8th Meeting reveals that during Dr. Johnson’s presentation of his Job Description and Personnel Agenda, he also introduced an item not on either Agenda: the elimination of four (4) positions starting July 1, 2009 that would save $440,000.00 annually to the District’s Operations Budget. (See DVD of April 8, 2009 Meeting, attached hereto as Exhibit E). Even though his Agenda recommendation was to fund the COS and CAO positions from Title I and IDEA funds, Dr. Johnson suggested to the Board several times that the funds from the eliminated positions could be used to fund the COS and CAO positions. Board Member Robinson clarified that the recommendation as written was that the funds were to come from Title I and IDEA funds, not from the newly available operating funds. Dr. Johnson confirmed this but again suggested that he would not mind if the Board wanted to use the funds from the eliminated positions. He further confirmed that there were enough funds coming in from Title I and other stimulus programs and that these funds could be used to pay the salaries of the CAO and COS positions. A motion was made to amend the Superintendent’s recommendation that the CAO and COS positions be funded from the Operating Budget with funds made available by the attrition of the four (4) positions. During the discussion of this motion, Board Member Richmond noted that although the stimulus money was short term, she believed that it was better to keep the newly found $440,000.00 in the Operating Budget so that other employees could keep their jobs in case of a budget shortfall. She concluded that she would not support this amendment. Board Member Hill agreed. Board Member Burdick also stated that she would not support this amendment and specifically wanted to fund the COS and CAO positions as written in Superintendent Johnson’s Personnel Agenda in order to free up the operational dollars that would come from the eliminated positions. The Board then voted on this motion (to allow the use of the operating funds from the eliminated positions to fund the COS and CAO positions). The amendment was defeated 5-1 (Board Member Benaim was temporarily out of the room). The minutes do not reflect
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this motion, but can be heard on the DVD recording of the April 8 th Academics Workshop (see Exhibit E). Board Member Burdick then made a motion to simply eliminate the four (4) positions from the budget as of July 1, 2009. As reflected by the Minutes, that amendment was unanimously approved. With that, the Job Description Agenda Item #10 was approved with minor changes to the job description of the COS. When Personnel Agenda Item #11 was up for approval, Board Member Robinson made a motion to postpone the vote until a date certain in June 2009 in order to review the budget at that time. This motion was defeated. A motion was then made to approve Dr. Johnson’s Personnel Agenda, including the funding of the COS and CAO positions from Title I funds, IDEA funds and from the operating budget as stated on the Agenda. That motion passed and Agenda Item #11 was approved 5-1 (Dr. Robinson dissented) without amendment. In sum, the alleged amendment by the Board that Dr. Johnson spoke of at the November 21, 2009 Board Meeting to fund the CAO position from the Operational Budget cannot be found on the record. Instead the record shows that, first, as is evident from his response to questions submitted by Board Member Burdick regarding Agenda Item #10 (see Exhibit C), Dr. Johnson was aware of the supplanting rules before the April 8, 2009 Board Workshop. Second, the record shows that despite this knowledge, Dr. Johnson advised the Board that they could fund the CAO position using federal funding dollars and, at the same time, suggested several times that they use the funds saved to the Operational Budget by the elimination of 4 positions for the CAO position. Third, the record shows that the Board did not want to use operating funds to pay for the CAO position even with the knowledge that the stimulus monies would curtail themselves in two years. In fact, a motion to use operating funds created by the elimination of the 4 positions was specifically rejected by the Board on April 8th. Finally, the record shows that the funding source of the CAO's salary was at some point changed to the Operational Budget and that this change was done without approval from the Board. Dr. Johnson has been asked repeatedly to produce evidence that the Board approved of the change. To date, he has not presented any such evidence. Without such evidence, Dr. Johnson’s actions and representations to the Board and the Public regarding the funding source of the CAO position violate the Code of Ethics of the State and the School District. In addition, Dr. Johnson is in violation of Palm Beach County School Board Policy 3.45(A), Promotional Practices, which provides: “All vacancies except those positions in which the superintendent recommends the appointment of a current and qualified employee shall be advertised.” Mr. Hernandez was not a “current and qualified employee” of the District at the time he was hired. As such, the CAO position should have been advertised and it was not. Dr. Johnson and the School Board are responsible for the lawful appropriation and accounting of funds for the benefit of the children of Palm Beach County. It appears Dr.
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Johnson misappropriated operational funds in order to hire the new CAO, Mr. Hernandez. The Public has repeatedly requested proof of the so-called “amendment” that would have changed the funding source of the CAO position from federal stimulus funds to operating funds. Despite these requests, this information has never been provided. In the interest of transparency, we request a full investigation of the funding source of the CAO position and the hiring of Jeffrey Hernandez by Dr. Johnson and the School Board. We further request that any appropriate action be taken against Dr. Johnson based on his violations of the Code of Ethics of the State and Palm Beach County School Board. Sincerely, Debbie Block Christina S. Howley Clare Kirchman Susan Sherman Petosa Cc:
Office of Professional Practices Mr. Robert Dow, CTA President Ms. Helene Samanga, CTA Executive Director Mr. Lung Chiu, District Auditor Dr. Monroe Benaim, Chairman, Board Member PBCS Mrs. Paulette Burdick, Board Member PBCS Mr. Bill Graham, Board Member PBCS Mrs. Carrie Hill, Board Member PBCS Mr. Frank Barbieri, Board Member PBCS Dr. Sandra Richmond, Board Member PBCS Dr. Debra Robinson, Board Member PBCS
Attachments: Exhibit A - “Agenda Item #11, Spec Mtgs and Workshops re: Academics for April 8, 2009, Special Meeting re: Personnel Agenda” Exhibit B - “Minutes of April 8, 2009 Board Special Meeting and Workshop re: Academics” Exhibit C - “Agenda Item #10, Spec Mtgs and Workshops re: Academics for April 8, 2009, Special Meeting on Job Descriptions” Exhibit D - “Superintendent’s Budget Message, September 10, 2008” Exhibit E - DVD of April 8, 2009 Board Workshop/Special Meeting
This is an ethics complaint sent to Eric Smith, Commissioner of the Dept. of Education, regarding the actions of Dr. Art Johnson, Superinten...