The Texas Education Agency, already facing a lawsuit over its takeover of the Houston school district, drew more questions this week for its claim that audits it says it is conducting in some districts allow it to withhold routine information on applicants who would replace elected school board members.
In at least two instances – in one of the largest school districts in the country and in a small town near Waco – the agency has refused to release the applications or other background information provided by people the TEA is considering or has considered for the boards of managers it appoints to lead those districts.
Joe Larsen, a Houston-based public records attorney and board member of the Freedom of Information Foundation of Texas, said that an employment application cannot be considered part of an audit.
“[T]he law does not prohibit the release of records that are part of the ordinary course of business,” he said.
A TEA spokesman declined to comment on the release of board of managers applications.
The agency last week provided the names of 243 applicants for an appointed board of managers for the Houston school district to the Houston Chronicle. But the list did not include the applications, resumes, or references provided by the applicants. The newspaper’s request for more information was denied.
Houston is one of five school districts in the state that the TEA seeks to take over or has appointed a board of managers for because the district or one of its schools repeatedly received failing grades from the agency. In such cases, the TEA appoints the board to replace some or all of the district’s elected school board members.
The move is controversial, as teacher groups and public education advocates allege that TEA appointees are not as accountable to voters as elected officials. In Houston, a lawsuit alleges that the practice may violate the federal Voting Rights Act.
The TEA’s vetting of applicants was questioned in October when Eddie Ellis Jr., an appointee in the small district of Marlin, was found to have pleaded guilty in 2017 to defrauding the government of nearly half a million dollars in Veteran’s Administration benefits. A few minutes of internet searching would have turned up the conviction. Ellis was removed from the board of managers after the discovery.
The Texas Monitor in October asked the TEA for copies of all documents Ellis had provided to the agency in connection with his appointment.
The TEA denied the request and referred it to the state attorney general’s office, which has not issued a ruling. The TEA contends that the request impinges on the agency’s ability to audit a school district, citing a commonly used section of the state’s public records statute.
The section, 552.116, can be used to prevent the public from obtaining records relating to an audit by a government agency. Some governmental entities have claimed that any records derived from a review or audit can be withheld. Others contend records can be released, but only after an audit is complete.
The standard is that final or completed audit reports are public information, while audit working papers are not. In the case of Marlin, the TEA appears to be saying that Ellis’ application is part of a review of the Marlin school district that has not been completed.
The TEA, in its letter to the AG’s office, states that the application is part of a “pending audit.” There has been no other public mention of any such audit.
Over the years, more and more agencies, including a river authority and hospital districts, toll authorities and other higher education agencies have gotten themselves added to the list of entities whose work is at least partially protected from public information requests.
In 2012, the Houston Airport Authority unsuccessfully sought to use the state statute to withhold records produced by a federal audit.
Montgomery Meitler, senior counsel at the TEA and a former attorney in the public records division at the AG’s office, has successfully used that section of the code 18 times since 2008.
The TEA has intervened in school districts for years, going back to the ‘90s. Sometimes the failing districts are merged with others, other times the state imposes administrative changes. Before 2015, the interventions were limited to two years. Legislation that year extended the time the TEA can exert authority over a district.
Larsen said he was not aware that the agency was trying to use the audit exception to keep from having to turn over records regarding its appointments to the local boards.
“Under this way of thinking, they are saying everything the agency does is this ongoing audit,” Larsen said. “I’d want to know when did this start, when did it end and what is the goal?”
Last year, the Texas Legislature approved a measure requiring the Sunset Advisory Commission to conduct a review of a specific agency. As part of the bill, the commission’s working papers used during the review were exempted from disclosure. But in noting that the papers are not releasable “until the LBB has completed a strategic fiscal review,” the law implies that all information is releasable after the review.
“In general, the law was helpful for us to encourage people to talk with us without fear of reprisal,” said Ken Levine, former director of the Sunset Advisory Commission, which reviews state agencies for efficiency. Sometimes audit papers include statements that are not true or could not be proved, he said.
“We tried to carve that legislation out very narrowly in terms of what we needed,” Levine said. But it was not intended to allow applications for service on public boards to be withheld, other than the normal personal details such as private phone contacts and social security numbers, he said.
“That sounds to me like a pretty expansive use of an audit privilege,” he said. “I think other agencies would try to expand the use of that word. And that’s up to the AG.”
Steve Miller can be reached at [email protected].