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SBE Special Meeting - 6/12/2008 9:00:00 AM

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SBE Special Meeting - 6/12/2008 9:00:00 AM
201 East Colfax Avenue
Room 101
Denver, Colorado 80203



The meeting commenced at 9:10 a.m. The following Board Members attended the June 12, 2008 meeting in person: Elaine Gantz Berman, Jane Goff, Evie Hudak, Peggy Littleton, and Pamela Jo Suckla, Chairperson. Randy DeHoff was absent due to a sudden death in the family. Vice Chairman Bob Schaffer attended by telephone.

1. Agenda Item: Approval of Certification of Online Programs submitted by Pamela Ice, Director of Online Learning.

Overview of the Certification Process and Final Approval. The Unit of Online Learning is recommended that the State Board of Education grant certification to five online programs. All have met or exceeded expectations in each area of the application rubric. While the Department recommended approval for five programs, there are two others that have applied for approval but which do not yet meet expectations. These programs did not yet meet expectations in multiple areas. The Unit of Online Learning, as per our Application for Certification guidelines, has contacted the programs that did not meet expectations in all areas, and has begun the process of helping them to adequately address the areas of weakness. In most cases, the necessary clarification or addition was accomplished within the thirty days allowed for a first re-submission. In two cases, more substantial changes are necessary in order for the program to be recommended for certification. It is the intent of the Unit of Online Learning to support and help the programs address the items that prevent them from being certified at this time. When the areas that are “Below Expectations” have been materially and satisfactorily addressed, then the Unit of Online Learning will submit a request to the State Board of Education to approve certification for those programs. As per statute, the programs may continue to operate until August without certification. It is the desire of the Unit of Online Learning that all programs will be certified at that time, having successfully addressed all areas in question.

In March, 2008 the State Board of Education approved the Permanent Rules For the Administration, Certification and Oversight of Colorado Online Programs. Within those Rules, there is a provision that Multi-District Online Programs must be certified by the State Board. The Unit of Online Learning is recommending these five online programs for certification after a review of the re-submission of their applications. The administration recommends approval pursuant to Senate Bill 07-215, the Colorado State Board of Education of the certification of Multi-District Online Programs.

The List of Multi-District Online Programs recommended for Two-year Certification Overview of the Certification Process and Final Approval are as follows:

List of Multi-District Online Programs Recommended for Two-year Certification










Randy DeHoff

Tim Spencer




Pat McGraw

Sohne Van Selus




Randy DeHoff

Kenneth Crowell




Dr. David M. Self

Alan D. McFadden




Joe D. Shields

Sean Freed

Ms. Littleton moved and Ms. Gantz Berman seconded the motion that the State Board approve the Certification for Approved Multi-District Online Programs as recommended by staff.
The motion carried 6-0.

2. Agenda Item: Notice of Rule Making for HB 1021: Early Access to Educational Services for Gifted Students submitted by Jacqueline Medina.

House Bill 1021, signed May 2008, reinstates a provision whereby districts may count in their enrollment and receive funding from the State Education Fund for students whom early access to kindergarten or first grade is deemed appropriate by an administrative unit.

House Bill 1021 defines the 4 or 5 year old child who may benefit from early access as a “highly advanced gifted child”. This child is academically gifted, socially and emotionally mature, in the top 2% or less of the gifted peer group, motivated to learn, ready for advanced placement, and has exhausted the resources of preschool or home schooling.

In the language of the statute, the State Board of Education is given the authority to promulgate rules to establish criteria and a process that an administrative unit shall use to make determinations regarding the advanced placement of highly advanced gifted children. 22-20-104.5 (5)(a).

The condition to permit early access is not mandated under HB 1021. Early access is a voluntary decision and process within an administrative unit. If early access is declared then the administrative unit must abide by the Rules established by the State Board of Education. The request for approval of notice of rulemaking will allow the CDE staff to move forward on gathering public input, drafting rules, and providing a draft set of emergency rules at the August 14, 2008 board meeting.

Ms. Gantz Berman moved and Ms. Littleton seconded the motion that the Notice of Rule Making for HB 1021: Early Access to Educational Services for Gifted Students. The motion carried 6-0.

3. Agenda Item: Appointment of (3) members to the “Public School Capital Construction Assistance Board” established in HB08-1335 (Building Excellent Schools Today-BEST) submitted by Vody Herrmann

The State Board heard discussion form Vody Herrmann and Ted Hughes on the summary report and addendum submitted to the board.

Following discussion, Peggy Littleton moved and Jane Goff seconded the motion to appoint Greg Randall as superintendent to the Public School Capital Construction Assistance Board and designate the appointment for a one year period. The motion carried 4-2.

Peggy Littleton then moved and Elaine Gantz Berman seconded the motion to appoint Tim White as school board member to the Public School Capital Construction Assistance Board and designate the appointment for a two year period. The motion carried 6-0.

Peggy Littleton moved and Jane Goff seconded the motion to appoint Mike Maloney as facilities planner or manager to the Public School Capital Construction Assistance Board and designate the appointment for a two year period. The motion carried 6-0.

4. Public Comment.

Mr. Bruce Caughey, Deputy Executive Director of CASE, submitted the following email to the State Board.

I am unable to testify in person during the public comment section of the special June 12 State Board of Education meeting due to a prior commitment, but wanted to share in writing some perspective on the Mill Levy Stabilization from the Colorado Association of School Executives.

We think that the courts should have the final say in whether or not the mill levy stabilization is constitutional. Therefore, we encourage the State Board to support an appeal to the Colorado Supreme Court. The district court opinion, essentially punted the final decision to the Supreme Court; we agree that this is the proper locus of decision making for this critical issue.

CASE strongly supported the 2007 effort to stabilize mill levies (in the de-Bruced districts) by preventing them from declining automatically as assessed valuations increased over time. TABOR requirements siphon off local funding for schools and push an ever increasing burden onto the state to meet Amendment 23 requirements—that unsustainable arrangement removes reasonable arguments for preserving local control of our schools.

Judge Habas specifically says in her opinion that the “additional property tax revenue collected as a result of SB 199 undoubtedly provides valuable assistance throughout the State of Colorado for important programs, especially in education.” She adds, “…this Court is not convinced that its conclusion today will have no significant and negative impact on those citizens who benefit from educational programs in the state.”

In fact, the stabilization adds $117.8 million to state coffers in 2008. This money provides for an investment in Colorado’s public education system, including significant new resources to the Colorado Department of Education, which translates to greater support for the field.

Importantly, the stabilization has pushed critical operational and capital funding to better meet early childhood needs by expanding preschool and full-day kindergarten slots. The School Finance Act adds to the base funding for pupils and provides additional funds for special education students, gifted and talented students, floor-funded districts and declining enrollment districts. In addition, the stabilization provided funding room for other bills including the Principal Leadership Academy, Regional Service Areas, School Safety Resource Center as well as the Teacher Quality and Counselor Corps initiatives.

At CASE we think that substantial legislative progress was made this session, and we encourage your support of the appeal in order to get the final say on the constitutionality of the Mill Levy Stabilization as laid out in SB 07-199.

Ken DeLay, Executive Director of CASB, provided the following testimony in reference to the Mill Levy District Court Decision: I recently finished an article for CASB’s Prism magazine in which I reviewed the history of school finance in Colorado and the development of our Constitutional tax code, Gallagher, TABOR, and Amendment 23. It is more an unhappy history than a happy one, and one too lengthy and torturous to review at length here this morning. However, in light of the decision this board is considering, there are a couple of conclusions I reached that might be useful to this board in its deliberations.

We might start with 1992, the year TABOR was passed by the voters of this state. In 1992, as a result of conscious and deliberate decisions made by the Colorado legislature four years previously in 1988, two goals were attained in Colorado school finance.

First, the 1988 legislature had decided to balance evenly the contributions from local taxes and state revenues to the school finance needs in the state. By 1992 that legislative goal had been attained. Roughly 50 percent of school finance was paid by state revenues, and 50 percent was paid by local revenues. This had resulted from a conscious decision by the state to increase its contribution to school finance and to take some of the burden for financing education off of the shoulders of local taxpayers.

Secondly, and again as a result of a conscious and deliberate decision by the state legislature, the mill levies in every school district in the state had been equalized. That is, with the exception of a couple of the resort school districts, the mill levy and the assessment rate on property was the same in every school district in the state. Every school district had a mill levy of approximately 40 mills in 1992. Of course, in the wealthier school districts with high property values the state contributed very little to the local school district, and in the school districts with low assessed property values the state contributed much more.

If we fast forward 15 years to the fall of 2007, we find a very different picture. The mill levy which the legislature had stabilized across the state varied in 2007 from a high of 40 mills in some of our least wealthy school districts to a low of something under 5 mills in school districts with high property values. Even discounting the resort districts, the differential in mill levies paid in school districts across the state was something on the order of 25 mills.

Who decided this? Who decided that mill levies should vary in inverse relation to property wealth across the state? No elected official made that decision. No member of the legislature and no member of the State Board. The change in mill levies assessed in school districts in the state is entirely the consequence of the operation of our Constitutional tax code, specifically TABOR and Gallagher. In short, as a result of TABOR and Gallagher, the legislature, the elected officials of this state, lost control of policy to set mill levies for local taxpayers.

Similarly, the 50/50 mix in contribution to school finance between local and state revenues has changed dramatically. The state’s share of school finance has risen over the last 15 years to nearly 70 percent of the total school finance bill. Conversely, the local share has fallen dramatically to slightly over 30 percent. Again, no elected official made this decision. The legislature’s conscious and deliberate policy of equalizing contributions to school finance between local and state contributions was undone by the operation of TABOR and Gallagher. Again, your Constitutional tax code at work.

Moreover, the consequences of this shift in funding for school finance has dramatically impacted other parts of the state’s budget. The additional 20 percent the state now contributes every year to school finance amounts to around $800 million per year, nearly one billion dollars. This is a billion dollars which could otherwise be spent on other state needs, such as transportation, higher education or health care.

The Mill Levy Stabilization Act which is the subject of the litigation now in the courts was an effort by the legislature to at least stop the bleeding. It actually lowered the mill levy in a number of the least wealthy school districts in the state, from 40 mills to 27 mills, and otherwise brought school finance into line with the provisions of TABOR. That is, if local voters voted to de-Bruce revenues, the mill levies did not need to decline further. They may not, of course, rise under the Mill Levy Stabilization Act regardless of the local vote.

Arguably, this is too little too late. It certainly does not correct the inequities that have developed across the state over the last 15 years, and it does not restore the balance between local and state funding of school finance. It does, however, stabilize the local tax base.

In closing, let me quote from the opinion by Judge Habas. Judge Habas, found, and I quote:

“The court specifically notes that Plaintiff characterizes Treasurer Kennedy’s view relating to SB-199 as a ‘revisionist view’. The court disagrees with this characterization insofar as it infers a nefarious or dishonest motive. To the contrary, the court concludes that there is no element of bad faith or intent to mislead in the positions taken by the state and CDE. Instead, the disagreements in this case reflect instead differing views of a very difficult and complicated analysis that continues in many areas of government post-TABOR.”

In short, the court found that the Mill Levy Stabilization Act was a good faith attempt by the legislature in a very complicated legal environment to address some of the state’s fiscal problems resulting from its Constitutional tax code. Ultimately, issues of this sort and this consequence must be decided by Colorado’s Supreme Court. This State Board would be remiss not to be at the table when the Court decides these issues. Indeed, it is likely that if the State Board abdicates its obligations to represent the broader interest of taxpayers and school districts in this state, there will be political consequences for this board and this Department with the legislature in upcoming years.

It is my hope and my recommendation that this board remain a presence in this case until it is concluded. If the Court ultimately agrees with the legislature and the governor, this board is then postured to participate in discussions about how to reform our tax code and school finance and to assume a leadership position with the state’s school districts in those discussions. If the Court ultimately affirms the trial court decision, this board will be at the table to help fashion a remedy that addresses the interests and the needs and the complexities of school finance and school districts. One’s public duty is not always the easy political path.

Dr. Jane Urschel, Deputy Executive Director of CASB provided the following testimony in reference to the Mill Levy District Court Decision:

Thank you Madame Chairman, members of the Board, Commissioner Jones. You have heard from Mr. Delay, I am merely a lay person coming to urge you to do as he has. What we respect about the State Board of Education is that you are elected to represent and you seek to provide leadership. Among your constituents are the school districts that we also represent. These are school district who count on elected leadership to pursue the best statewide policies that our representative democracy can produce. These school districts join us in urging you to join in the appeal to the higher court. The more thinking, weighing, conversing on this issue, the better chance we have to produce valuable insights and results that ultimately give us better state policy. That is what this is about. The issues in this case should not be partisan in nature. We’re talking about interpretations of very complex constitutional issues. The time for the partisan conversations and discussions was in the legislature. And as you remember that a year ago, those discussions did occur, but not in the courts. Thomas Jefferson observed: I never saw an instances of one or two disputants convincing the other by argument. Now Jefferson was a lawyer as we know and he knew the court system is indeed a disputant system. However, the part of the system, to a lay person at least, that is constructive is in appeals. Appeals build in more than argument, it builds in reflection, more deliberation, and when it works well, the creation of wisdom. A wisdom we have an obligation to seek to arrive at the best policy decisions we’re capable of creating.

Following public testimony, the State Board convened an executive session pursuant to § 24-6-402(3)(a)(II), C.R.S. to confer with its attorneys concerning a pending lawsuit.

The State Board adjourned the Special Meeting following the executive session.


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