Last night, the Hartford Board of Education, led by Hartford’s Mayor, voted 6 to 2 to authorize Hartford’s Superintendent of Schools, Christina Kishimoto, to sign a contract with Family Urban Schools of Excellence (aka Jumoke Academy, lnc.)
The agreement would allow FUSE/Jumoke Academy Inc. to manage Hartford’s Milner Elementary School and, in turn, FUSE/Jumoke Academy Inc. would be given $345,000 a year to perform that task.
The problem is that the contract that the Hartford Board of Education voted on last night was not developed in the methods allowed by law.
While people may disagree about the appropriateness of handing over a public school, where nearly half the children go home to households where English is not the primary language, to a company that has never educated a single bi-lingual student, no one should misunderstand the nature of last night’s Board of Education vote.
The question is not whether the Hartford Board of Education has the right to make such a bad policy decision. Transferring management of the Milner School to FUSE/Jumoke Academy may hurt hundreds of Latino and other bilingual children, but Governor Malloy’s new education reform law unfortunately allows cities and towns to contract with third parties to run public schools.
That said, any contract to delegate management of a school must be done in a legal way and a review of the facts makes it clear that the contract the Hartford Board of Education voted on last night WAS NOT developed according to law.
As everyone knows, an act is illegal when it is done contrary to what the law requires or is forbidden by the law.
When it comes to developing contracts that use public funds, Connecticut and its municipalities have very specific requirements concerning what must be done in order for a contract to be legally binding.
If contract is developed in an inappropriate way, that contract is null and void and cannot be utilized.
In addition to appropriate provisions of Connecticut law, since the Milner School agreement was between FUSE/Jumoke Academy Inc. and the Hartford Board of Education, the laws that must be followed include the City of Hartford’s Municipal Code.
Hartford’s Municipal Code could not be clearer. According to Sec. 2-548(A), “All agreements, in an amount in excess of the twenty-five thousand dollars ($25,000.00) threshold established by the Charter of the City, shall be awarded through the competitive solicitation process…”
The contract between the Hartford Board of Education and FUSE/Jumoke Academy was for $375,000 a year, clearly in excess of the twenty-five thousand dollar threshold, but no competitive process was used.
However, Hartford’s Municipal Code does provide for what is called “sole source procurement” in special circumstances. Section 2-552 provides that, “A contract or purchase order may be awarded for a commodity, service, or construction item without competition when, under regulation or policy, the Purchasing Agent determines, in writing, that there is only one known capable supplier or source for the required commodity, service, or construction item occasioned by the unique nature of the requirement, the supplier or market conditions.”
This means that if there is only one possible qualified vendor, the public entity may skip the competitive bidding process. However, by its own admission, the Hartford’s Board of Education did not follow or even attempt to utilize the sole source provision when developing the FUSE/Jumoke Academy Inc. contract.
Finally, Hartford’s Municipal code contains provisions for purchases during “public emergencies” (Sec. 2-553) and “extraordinary conditions” (Sec. 2-554), but the FUSE/Jumoke contract would not qualify for either of these provisions and was those provisions were not used.
So if Hartford did not go through the required bid process nor did it go through the alternative sole source process, how did the contract come about?
Maybe Hartford officials will claim that the agreement is not a contract or is a state contract and not one within the purview of the Board of Education?
But of course, it is a contract and, in particular, it is a contract between the Hartford Board of Education and FUSE/Jumoke Academy Inc.
Governor Malloy’s education reform law directs the following;
“Sec. 10-223i. Contracts between boards of education and not-for-profit educational management organizations…the local or regional board of education for a school participating in the commissioner’s network of schools, as described in section 10-223h, that is implementing a turnaround plan that assigns the management, administration or governance of such school to a not-for-profit educational management organization, as defined in section 10-223h, shall include in each contract with such approved not-for-profit educational management organization a requirement that such not-for-profit educational management organization annually submit to the Commissioner of Education, and make publicly available, a report on the operations of such school…”
So by state law, the agreement between FUSE/Jumoke and the Hartford Board of Education MUST be a “contract.”
In this case, Hartford was responsible for submitting a turnaround plan for Milner and the State Board of Education then approved that plan. It was Hartford that decided to delegate the Milner School to Jumoke Academy. It could have chosen to hand over the school to another entity or could have decided to use its own management skills to turnaround the school. Regardless, once the City decided to pick someone else to run the school, it was required to make that choice using an appropriate purchasing process.
And Hartford failed to perform that most basic function.
Now, as every legislator knows, it is possible to write a bill that exempts certain actions from an existing law. For example, Malloy’s education bill could have said, “Notwithstanding state purchasing laws and municipal codes, boards of education may sign contracts with not-for-profit educational management organizations without going through purchasing requirements.”
Legislative language like that would have allowed the state and towns to circumvent contracting requirements when handing over public schools to third parties. BUT THE LEGISLATURE DID NOT INCLUDE SUCH LANGUAGE.
So the law is the law.
Hartford may develop a contract with the FUSE/Jumoke Academy Inc., but if it wishes to do so, it must follow state and municipal purchasing laws.
The Board of Education failed to do that and that means the contract they claim to have approved is, in fact, illegal.
As Americans we don’t pick and choose which laws we want to follow. The law is the law and no one is above the law.
The Hartford Board of Education must, like all government entities, follow the law. Even when the law is inconvenient.
They could have followed the law. They should have followed the law.
Instead they have backed themselves into a very difficult position by attempting to approve an illegal contract.
The only way out is to admit their mistake and go back and do things the right way.
Anything short of that is unacceptable.