The Columbus Dispatch continues to lead the way on the investigation of allegations that district officials altered student records to improve school performance metrics. Since the scandal broke months ago, three top-tier district officials have already resigned, and the new interim school chief’s promises to “clean house” point to further firings and resignations down the road.
According to Jennifer Smith Richards and Bill Bush, who have been responsible for the majority of the Dispatch’s coverage, Dan Good, who has been on the job for less than a month, says that he’s been telling district employees who have been implicated in the scandal that they need to leave. He’s warning those who are unwilling to resign that the district will take steps to fire them. The internal auditor report named as many as 30 officials directly involved in efforts to manipulate student data.
However, it’s possible that the names of those 30 will never be made public even if they’re forced out of their jobs due to their involvement. Last week Bush wrote that despite the fact that state law demands that any employee named in an investigation have details of their involvement be made part of their public personnel files, attorney-client privilege could keep this information away from the eyes of the public.
Attorney-client privilege — what the school board used to close meetings last year to discuss the data scandal — now allows the district to withhold memos and transcripts of employee interviews about data rigging. That’s because that material was gathered by the district’s general counsel rather than the Employee Relations Department that routinely does such investigations.
Attorney-client privilege protects information that a client communicates to an attorney in confidence for the purpose of getting legal assistance.
The internal auditor who led the initial investigation recommended that the names of those involved be turned over to Labor Relations. Gene Harris, who was the district’s superintendent at the time, agreed to do so as part of the adopted “corrective-action plan.” However, despite this commitment, the investigation was then taken over by Larry Braverman — the attorney representing the district. According to the auditor, Braverman demanded that the names of the 20 to 30 officials be turned over directly to him.
After Harris resigned and Good took over, none of the information on the investigation was placed in public files of officials who have already resigned. In 2008 Ohio adopted a law that forces districts to place investigative report in employee files if the employee leaves while an investigation into wrongdoing is ongoing.
The district has reported three employees to the state under that provision, but “there is no investigatory file separate from what has been developed as part of the general investigation of the data issues,” according to a written statement district officials sent in answer to a reporter’s questions. “The employees who have departed have either resigned or notified us of their intent to retire after general discussions of their involvement in data changes. No specific documents were involved in those discussions.”
“That doesn’t raise a whole lot of confidence, does it, in the process,” said Thomas Hodson, a communication professor at Ohio University who formerly served as a municipal-court and common-pleas judge in Ohio and was a judicial fellow at the U.S. Supreme Court. Hodson is an expert on Ohio public-records law.
Hodson is skeptical over the district’s claim of attorney-client privilege. He speculates that the privilege doesn’t apply in cases where information comes from a third party – in this case, the officials under investigation.
Not to mention, claiming that such a relationship exists between the district, its attorney and the three officials who have resigned under a cloud represents a conflict of interest. The district’s attorneys can’t represent officials who have been forced to leave because of investigation’s findings.
The Ohio Department of Education isn’t privy to those documents, either. The law requires the district to fill out a form and check a box stating that the employees resigned because of or in the course of an investigation. The state uses that form to launch its own investigation, said John Charlton, spokesman for the department.
Those forms have been submitted to the state by DeWayne Howard, the director of the district’s Employee Relations Department, for three employees: Steve Tankovich, Michael Dodds and Stanley Pyle.
Meanwhile, the investigation shows no signs of winding down, nor do the costs of keeping it going. According to Smith Richards, the school board has spent more than half a million to defend themselves against these allegations and has allocated another $250,000 earlier this month. With FBI opening its own investigation and two parents now filing suit, these data rigging efforts will be haunting the district – and the city – for years to come.