By Sally Absher
After last week’s board meetings, it is clear that not only was KCS Superintendent Jim McIntyre’s unilateral application for and acceptance of multiple grant awards against the BOE Policy DM (Grants Management), but that the policy itself is not in compliance with state statute. The question is what to do about it.
Despite efforts by some board members (notably Deathridge, Sanger, Harris, Fugate, and Carson) to defend McIntyre, blame the law department, and hide behind the “Superintendent Side Agreement” (which the board rejected during their fall 2014 Board Retreat), a robust and rigorous discussion ensued.
There are several issues at play. The first is the contract between KCS and the Broad Center for the hire of Broad Resident Christy Hendler. The Law Department identified numerous “illegal and unenforceable” clauses in the original contract, which was signed by McIntyre 9/12/2014. These were outlined in a Memorandum from Knox County Law Director Bud Armstrong to Amber Rountree and Patti Bounds dated April 17, 2015. The Law Department did not receive a copy of the agreement to review until April of this year.
Dr. McIntyre assured the board in the May Work Session (5/4) that he had spoken with the Broad Center, and all questionable clauses had been revised. The Law Director indicated he had not had time to review the revised contract. During the Regular May meeting (5/6), Armstrong indicated that he was still seeking clarification on some parts of the document, and the discussion and possible action on the contract with the Broad Center was delayed for 30 days.
The second issue at play is the Board Policy DM, Grants Management, which McIntyre claimed guided him in his unilateral approval of the grant application. As written, the contract was clearly a matching grant. Christy Hendler was hired at a starting salary of $90,000, plus benefits and taxes (approximately 30% of the salary). In the contract, Broad agreed to pay $27,900 for one year, with Knox County tax payers picking up the remaining $89,100.
Policy DM grants the Director of Schools full authority to accept any grant without notice or approval of the BOE, even if it requires matching funds. To that extent, it is illegal and unenforceable. State law T.C.A § 49-2-203 clearly states that it is the duty of the BOE to apply for and accept grants.
Armstrong further states that even if this broad grant of authority was legally valid, it is limited by Section 4 under “Receipt of Grant Awards” which provides that grant awards with certain exceptions must be approved by the BOE, including “4. When there is a “matching” requirement during the total period of the grant that requires a general fund or other grant fund obligation.”
The acceptance of the grant is required to be approved by the Board of Education.
Furthermore, T.C.A § 49-2-203 also states, “…appropriations of federal or private grant funds shall be made upon resolution passed by the local board of education and shall comply with the requirements established by the granting entity. A county board of education or city board of education shall provide a copy of such resolution to the local legislative body as notice of the board’s actions within seven (7) days of the resolution’s passage.”
The BOE is required to pass a resolution, and send such resolution to the County Commission. Since there are matching funds involved, County Commission is required to vote to accept such grant award. Withholding, misrepresenting, or falsifying information to the funding body could have severe ramifications for the Superintendent, and the Board of Education.
Rountree asked that Policy DM be revised to be brought into compliance with Tennessee statute. Bounds asked the Law Director is it was possible to bring the policy into compliance with the law. Armstrong said, “The state statute requires this Board to apply for and receive all grants by resolution. Therefore it is hard to delegate something that is required by resolution. Policy DM would be very difficult – I don’t know how you would get it into compliance when the total power and authority in receiving and implementing grants are by resolution of this Board as required by state statute.”
McIntyre balked at the legal requirement that grant applications be approved by the Board. Armstrong reiterated that the policy refers to applying for and receiving grants. He said, “It all boils down to transparency and following the rule of law…the board cannot delegate the authority that is required by resolution.” McIntyre replied, “If that is the Law Director’s position, it could be challenging.”
Bounds said, “regardless of the Policy DM, from looking at the initial Broad contract, it would seem to me that we have given up a lot of our rights as a board, to the Broad Center, in dictating how things are done.
McIntyre said, “What I remember is that under the policy, under certain circumstances the board authorized me to receive grants, under $50K. What I failed to recognize was that one of the exceptions to that policy is where there are matching funds involved.”
Bounds said, “It is my concern that the Superintendent act with this Board in seeing that the laws related to the schools and the rules of the state and the local board of education are faithfully executed. I feel like in some ways the superintendent has misled and deceived this board, and now in bringing about the revisions, is asking us to fix something where it did not comply with the law.” She enumerated her concerns, and concluded, “under these behaviors, I think that we are getting dangerously close to a level of cause.”
The board also discussed the Achieve, Inc. grant. This is a $40,000 grant awarded “for support of work to complete a student assessment inventory by August 30, 2015.” This is the work our $90K/year Broad new hire will conduct. Achieve, Inc. is a non-profit organization that was instrumental in pushing Common Core and the high-stakes testing required under Race to the Top. The board voted 6-3 to approve the Achieve, Inc. grant, and send it to Commission on the consent agenda.