At last minute, an attempt to undo charter school FOI action

In the final hours of the General Assembly session last week, language that would negate adopted legislation making charter schools subject to the state’s Freedom of Information Act managed to get added to a bill implementing the state budget.

That omnibus bill ultimately ran out of time to be approved by the legislature before their constitutional deadline to adjourn — but legislators plan to reconvene soon for a special session to tie up loose ends.

It’s unclear whether the language will resurface, since no one is publicly taking responsibility for adding the provision to the bill, crafted in private by top legislators and Gov. Dannel P. Malloy’s administration.

“I’m not familiar with the language, so it’s hard for me to comment about something I’m not familiar with,” Malloy said when asked if his staff played any role in the implementer language.

So-called budget implementers are bills typically passed at the end of a legislative session to make changes in law that are necessary to carry out the intent of the state budget. But a broad range of issues are often added to them. Implementers are usually large pieces of legislation that virtually always pass.

Current law treats charter management organizations (CMOs) as nonprofits, which are subject to disclosure laws only if they are shown to be the “functional equivalent” of a public agency, a determination made by applying a four-part legal test. Because they are not automatically presumed in law to be public agencies, it can take months to get information under the state’s Freedom of Information Act from CMOs that object to disclosure.

The Freedom of Information Commission, the state panel that determines whether information requests were improperly denied, has three cases pending before it for requests that were denied one year ago.

In near-unanimous votes last Tuesday, state legislators voted to make charter schools and their management companies automatically subject to the state’s public disclosure laws.

One day later — and five hours before the General Assembly would adjourn — a nonpartisan legislative analyst informed a key legislator that the bill implementing the budget would negate the FOI change.

Calling the language being considered “problematic,” Marybeth Sullivan with the Office of Legislative Research translated the so-called “technical changes” included in the budget implementer.

“This language mimics the ‘four-part test language’ in statute [currently] that the committee was trying to avoid; this could slow the disclosure process down quite a bit if it invokes the test,” Sullivan wrote the chairman of the legislature’s Education Committee, and other legislative staff, according to documents the Mirror obtained through a Freedom of Information request.

Worried this language will resurface when lawmakers reconvene for a special session, one of the state’s teachers’ unions has asked their members to write to legislators and the governor asking that charters be subject to the Freedom of Information Act, just as traditional neighborhood schools are.

“Attempts by administration officials to strip the FOI and charter approval process provisions of the bill were discovered on the last day of the session during budget ‘implementer’ discussions. That’s when pet projects and sneaky legislative maneuvers — or “rats” — are traditionally passed,” reads the Action Alert from AFT-Connecticut. “Ask the governor to refrain from any efforts to dilute or weaken Senate Bill 1096 and instead sign it into law.”

Malloy, a Democrat, said Tuesday he generally supported the concept of transparency for charter schools, but he declined to commit to signing the bill that makes the publicly funded schools subject to the FOI Act, saying he had yet to see it.

“Not knowing the bill that you are talking about, it’s hard for me to tell you whether I support the bill,” he said.

Rep. Andy Fleischmann, chair of the legislature’s Education Committee, said he will not support changes to the bill the House and Senate passed last Tuesday.

“I would certainly be concerned if someone tried to change a measure passed by the General Assembly. We all agreed it represented a fair compromise,” said Fleischmann, D-West Hartford. “If it ain’t broke don’t fix it.”

But charter school operators and advocates have opposed the transparency bill.

“We do not support measures that unfairly target non-profit charter support organizations with harassing document requests and public smear campaigns,” said Jeremiah Grace, the state director of the Northeast Charter Schools Network, following last week’s vote.

AFT-CT President Melodie Peters said charter operators should stop trying to weaken the adopted bill.

“Instead of exploiting the implementer process to weaken the bill, they should choose how they want to operate. Are they prepared to abide by the same set of rules as public schools? If not, they can simply choose not to accept public dollars and operate like a truly private school,” she said.

The implementer language drafted the last night also would have blunted another key aspect of the bill approved by the General Assembly.

The bill makes clear that the State Board of Education — whose members are appointed by the governor — can approve only an “initial certificate” for a charter school and that a review and formal funding approval from the legislature are required to open.

Legislators bowed to gubernatorial pressure and included proposed funding for two new charter schools that the state education board had approved to open this fall. Those schools began accepting applications, and one signed a lease for a location, even though the legislature had not yet voted to fund them.

“The new language does undermine the committee’s efforts somewhat,” Sullivan wrote to Fleischmann. “It states that as of July 1, 2015, the [State Board of Education] still ‘grants or renews’ the charters.”

Mirror Capitol Bureau Chief Mark Pazniokas contributed to this article.