Public Education Department fined for violating open records law

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The state’s Public Education Department says it doesn’t have documents to back up a claim it repeatedly used to discredit an old teacher evaluation system when it implemented a new system in 2013.

The state's Public Education  Department says it no longer has a study it used to justify creating a new teacher evaluation system in 2013.

f_a_r_e_w_e_l_l / Creative Commons

The state’s Public Education Department says it no longer has a study it used to justify creating a new teacher evaluation system in 2013. (photo cc info)

And the department violated the state’s Inspection of Public Records Act (IPRA) in the way it responded to a union’s request for the documents, a judge ruled last week.

The department (PED) and Gov. Susana Martinez have repeatedly criticized the old system they characterize as wrongly rating 99 percent of teachers effective.

“You can’t have 99 percent (deemed) effective teachers and — when I first took office — 63 percent graduation rates,” New Mexico Watchdog quoted Martinez as saying in 2013. “You can see that the math doesn’t match up.”

That was a primary justification for implementing one of the administration’s most controversial and significant reform measures — an evaluation system that relies heavily on student test scores to rate teachers.

The National Education Association, which opposes the new evaluation system, wanted to know where the 99 percent figure came from. It filed a formal request for that information in May 2014. When PED responded months later, it said the information came from a study “in the early part of 2010” that examined professional development dossiers submitted by teachers between 2005 and 2010 who were seeking a better ranking and a pay increase.

“The study indicated that of the nearly 6,800 submissions, less than 15 did not meet competencies as verified by local superintendents,” PED’s response stated.

But the department didn’t provide a copy of the study. So the NEA filed a lawsuit.

Last week in Santa Fe, District Judge Sarah Singleton ordered PED to pay the NEA’s legal costs and a $485 fine for taking months to respond to the records request, the Albuquerque Journal reported. According to the newspaper, “Singleton said the PED made a reasonable attempt to track down the requested records but did not respond in a timely and thorough manner.”

“This to me is the kind of breach of the (open records) statute that is not egregious,” the Journal quoted Singleton as saying.

PED ‘no longer has a copy of the study’

Under the state’s public records law, an agency has 15 days to provide requested documents in most cases. When an agency deems a request “overly burdensome” it has more time.

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In this instance, PED deemed the NEA’s request overly burdensome, then took months to respond and ultimately didn’t provide the documents. Susan Boe, the executive director of the New Mexico Foundation for Open Government (FOG), said the NEA’s request was not overly burdensome.

“When public officials cite statistics in official speeches or comments, they should be prepared to quickly produce the facts that back up their statements,” Boe said.

FOG filed its own request earlier this year for the records the NEA sought. It received a more detailed response stating that the 99-percent claim “came from a study done by the University of New Mexico that examined the total number of Professional Development Dossiers submitted between 2005 and 2010.” The employee who “worked with UNM on the study” no longer works for PED, and PED “no longer has a copy of the study,” PED’s letter states.

“It may be possible to get the information from UNM,” the letter states.

When an agency doesn’t have the requested records but knows what department does, it’s required by law to forward the records request. The PED letter to the sunshine group makes no mention of forwarding FOG’s request to anyone at UNM.

Standing by its rhetoric

Even though it can’t produce the study, the education department is standing by its rhetoric. Spokesman Robert McEntyre was quoted by the Journal as saying, after last week’s ruling, “the fact remains that under the old, broken system, 99 percent of teachers were rated effective even though only half of our kids were proficient in reading and math.”

The NEA’s director of government and media relations, Charles Goodmacher, took the opposite stance, saying there’s no factual basis for the claim that the prior evaluation system didn’t work. Goodmacher is also on FOG’s board of directors.

The 99-percent figure comes from an analysis of only about a third of all teachers in New Mexico — those 6,800 who submitted dossiers to move up a level. Michelle Skigen, a Deming teacher, suggested that as a reason almost all succeeded.

“In any given year, most teachers aren’t doing a dossier, and certainly those who are struggling in their jobs aren’t doing one,” Skigen said during a Facebook conversation.

Del Hansen, a retired educator in Las Cruces, pointed out on Facebook that PED has “ferociously” defended the 99 percent statistic even as educators, parents and lawmakers questioned it.

“If the 99 percent figure is indeed true, one would think and hope the PED could and would produce the proof,” he said. “If they cannot or will not make public the data for the 99 percent figure, it calls into the question the very data they report as the basis for teacher evaluations.”

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