Ed board brushes off lawsuit threat as Gloucester charter flap grows

Even as lawmakers threatened prolonged legal action and investigation, members of the state board that approves charter schools insisted they had no legal authority to shut down a Gloucester school that has become mired in political controversy and infuriated residents of the coastal community.

Members of the Board of Elementary and Secondary Education stood by their decision to approve the Gloucester Community Arts Charter School last year, a decision that has now drawn the eye of Attorney General Martha Coakley, who said Monday she is looking into the flap.

The board’s staunch defense led to an immediate countercharge from Inspector General Gregory Sullivan who accused board members of making “patently inaccurate” statements about the school. He vowed to release a follow-up report to an early-January report that found flaws in the charter school approval process.

But board members brushed off his claims and dismissed a call to ask the attorney general for guidance.

“I resent the assertion that somehow there’s a grand scheme … to deceive people and do it in a way that is not in the best interest of the public,” said board member Dana Mohler-Faria.

The Gloucester school has been under a microscope since September, when emails from Education Secretary Paul Reville to Education Commissioner Mitchell Chester surfaced indicating that the school’s charter should be approved, in part, to appease charter school proponents. The revelation sent Gloucester into an uproar and led to calls for the school’s revocation by local lawmakers and, eventually, Gov. Deval Patrick and Reville too. Republican lawmakers harnessed the controversy to call for Reville’s resignation.

The six-hour board meeting brought Reville face to face with Rep. Ann Margaret Ferrante and Sen. Bruce Tarr of Gloucester, as well as Inspector General Sullivan, each of whom lambasted the approval process and called for the revocation of the charter.

The packed room fell silent as Sullivan described February 2009 emails between Reville and Chester, as well as between other staff members of the Department of Elementary and Secondary Education, that he said indicated that Chester was pressured into approving the school over the negative recommendation of his Charter School Office. The inspector general also pointed out that the department’s own policies, as listed on its website, indicates that the commissioner shall not recommend approval of any charter school that fails to meet established criteria.

State education officials have confirmed that before its approval of the Gloucester Community Arts Charter School, the Board of Education had never awarded a charter to an applicant group that the charter school office had not recommended for approval based upon a criteria-based determination.

Sullivan also suggested that Chester had misled lawmakers into believing he would conduct further meetings on the charter school even though he could produce no records to indicate that meetings were held.

Staff of the department offered a detailed rebuttal to Sullivan’s report, concluding that Chester has sole authority to determine whether a charter school is recommended for approval, regardless of the charter school office’s determination. In the case of the Gloucester school, the department’s legal counsel described their recommendation as “a jump ball.”

“The inspector general’s assertions are based on this set of guidance and the set of criteria and it seems clear that whatever was posted the web site, there is nothing in statute or regulation that constrains the commissioner. The commissioner is the ultimate authority,” said board member Thomas Fortmann.

Reville and Chester have disavowed the inspector general’s conclusions, but Reville and the governor supported a push by Rep. Ferrante to revoke the Gloucester charter, an effort rejected by the House. Ferrante said her colleagues determined the revocation would need to be an executive branch action, not a legislative one.

Ferrante took aim at the board and chastised Reville for shaking his head during her comments.

“What happens from this point forward, if the board seeks to take no actions, is further investigations, further subpoenas and further depositions,” she said, adding, “It’s not a threat, it’s a reality of what’s coming. There will be suits filed.”

Ferrante told the News Service she is awaiting word from the mayor’s office to determine whether the city, the local school committee, or the taxpayers have standing to sue. Word should come by next week, she said.

Ferrante, Tarr and Sullivan, a former Democratic state lawmaker, urged the board to rescind the school’s charter, adding that if members felt – as several have contended – that they lack the legal standing to do so, that they consult the attorney general for an advisory opinion. Board chair Maura Banta indicated that the board had no intention to make a decision on referring the matter to the attorney general.

After the meeting, Chester told the News Service the board had already received outside counsel’s opinion that they had no authority to revoke the charter. Asked why there was no push to seek the attorney general’s opinion, Chester added, “I think the vast majority of the board members here don’t feel they need to know the answer to that question. They’re satisfied with the charter that’s been authorized.”

Reville told the News Service he’d be open to the attorney general’s opinion but that even if the board has authority to revoke the charter, most board members appeared to feel “satisfied” with the approval process.

Coakley, during an appearance Monday on WGBH’s “Greater Boston,” volunteered the Gloucester school as a topic her office is involved in now that she's back from the U.S. Senate campaign trail. “Were right back in, with things up in Gloucester, charter school issues, there’s a lot of stuff going on that I’m happy to get back to," she said.

Reville said he anticipated that a lawsuit would be filed in the Gloucester matter no matter what happens with the charter – proponents of the school would file suit, he said, if the charter were revoked.

“The board really can’t base its actions on the threat of lawsuits,” he said.

Chester, similarly, brushed off any impending suit.

“This would not be the first time that there’d be litigation over a charter either in this state or elsewhere,” he said. “I understand people have strong passions about this one way or another.”