Legal concerns at issue as JCPS school board members keep quiet about ousting Hargens
As the state begins its "unprecedented" management audit of JCPS, will a strict "non-disparagement clause" in Hargens' new contract prevent board members from being allowed to speak freely?
LOUISVILLE, Ky. (WDRB) -- A day after they reached a deal to oust Superintendent Donna Hargens, the seven elected members of the Jefferson County Board of Education are reluctant to speak to the media about why they made the change.
The board reached the agreement with Hargens in a 90-minute closed-door session Thursday. Following the meeting, board chairman Chris Brady was the only member to speak to the press, and he said his brief statement would be "the only media statement this board chair will be giving and perhaps other board members."
Chris Kolb, who was elected to the board in November on a campaign to oust Hargens, said Thursday that he wouldn't comment because "it's in best interest of the agreement not to talk about it right now."
Kolb's silence -- and the silence of other board members -- appear to be the result of a non-disparagement clause in Hargens' new seven-page contract, which states:
"The Board, as well as its Members, Representatives and Counsel, and Hargens, as well as her Representatives and Counsel, mutually agree to refrain now and forever from disparaging each other, directly or indirectly, publicly or privately, in any way. All communications with third parties by either Party relative to the other Party shall be non-disparaging and professional."
Such clauses, which prevent employers and employees from speaking negatively about each other, are fairly common when two parties agree to part ways, according to employment attorneys contacted by WDRB.
However, the clause raises questions about whether board members will be free to speak candidly to state officials who have begun an "unprecedented" management audit ordered by Kentucky Education Commissioner Stephen Pruitt. As part of the audit, which began two weeks ago, state officials will visit the district and conduct on-site interviews next week.
At least six of the seven-member school board are scheduled to be interviewed from April 18-26. Hargens is also scheduled to be interviewed by state officials on April 25.
Michele Henry, an employment attorney in Louisville, said the non-disparagement clause in Hargens' exit deal is strict, though the state could trump the agreement by using subpoena power to compel board members to talk.
In a statement issued Thursday, Pruitt said he wishes Hargens well and thanked her for "her service to Kentucky’s public school students.”
"As I announced in February ... that audit is not about just one person or one issue, so we are still moving ahead with it," Pruitt said. "KDE looks forward to working closely with JCPS interim leadership, the board of education, educators and others – including the eventual new superintendent – as we continue with this work."
Nancy Rodriguez, a spokeswoman for the Kentucky Department of Education, said Friday that her agency will not comment specifically on ongoing audits or investigations.
"In general, management audits focus on systems, not individuals," she said.
Pruitt has said he would like to have the results by the end of the school year -- results that could lead to a state takeover of JCPS.
In his letter to JCPS Superintendent Donna Hargens released on Feb. 14, Pruitt said the state’s largest school district suffers from “critically ineffective and inefficient management.” His assessment outlined 32 findings from a management review he ordered in July amid concerns about student safety, data integrity issues, questions about culture and poor communication in JCPS.
Pruitt has said the decision to further scrutinize JCPS is designed to "take a comprehensive look at the entire school district to find any systems and processes that are dysfunctional or broken."
"This has to be about kids, it can’t be about adults," he said. "There are systemic issues preventing every student from getting the education they deserve."
Other details of Hargens' contract include clauses about how she will be paid following her resignation, which is effective July 1. It also outlines how she is to continue her duties and help with "developing and implementing a transition plan" to assist whoever is appointed as interim superintendent or superintendent beginning July 2.
She will continue to earn her $276,000 salary until then and the board will also contribute $60,000 to a tax-deferred annuity plan or another investment plan that she will select.
In addition, the board will make a $48,000 payment to Hargens to cover what she would have received in healthcare benefits through June 30, 2019, which is when her contract was supposed to end. Hargens will also be paid for up to 90 accumulated unused sick days, at a discounted rate, and for up to 60 accumulated vacation days -- a total of about $92,000.
Under Hargens’ watch, the district has had a curriculum management audit and an unflattering examination of central office bureaucracy by former State Auditor Adam Edelen. In addition, recent test scores show that more than half of the district’s students are not performing on grade level in reading and math.
The data from the 2015-16 year showed that only 66 of the district's 139 tested schools met their annual performance goal set by the state – down from 74 schools in 2014-15 and 96 schools in 2013-14.
JCPS’ four-year graduation rate did increase from 79 percent to 80.1 percent, breaking the 80 percent mark for the first time. District officials say 6,108 students graduated in 2015-16 -- 164 more graduates than the previous year.
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