[Before reading further, linking to these print news articles may help (or not) to understand how the media is trying to spin this topic. Click HERE, HERE, and HERE]
 
Education “Summit”
 
A joint meeting of the Legislative Education Committee membership and numerous members of the Utah education community, an informal  “summit” of sorts, was arranged at the Granite School District offices on Wednesday, June 13, 2007.  Presented to legislators and educators alike were a number of topics from policy issues to budget requests.  An inevitable (but brief) discussion on the recent Utah State Supreme Court decision regarding the Voucher issue occurred.  Informal visits between legislators and educators, like this, are few and far between.  However, in my experience, these less-formal meetings can be very productive.  And, this one was.
 
So, it was no surprise when Education Committee Co-Chair Representative Greg Hughes personally invited Kim Burningham, Chair of the Utah State Board of Education, to come the following week to the Capitol to further discuss some of these important issues with the full committee membership during our monthly Interim meetings–we are a part-time legislature and our opportunities to speak with state leaders are limited.  Some committee members were not able to attend the “special” meeting because of prior work commitments.
 
Agenda Item #2
 
Interim is an interesting time to discuss significant issues, primarily because unlike committees during the Legislative General Session, House and Senate members meet together as non-leadership in joint collaboration and supervised debate (Conference Committees during a General Session are the only other time I can think of when members of both bodies meet to “iron out” legislative impasses).
 
Often, requests by Legislative Chairmen to have Division and Department Heads (or their representatives) testify before Standing and Interim Committees are extended and graciously accepted.  I’m unfamiliar with any circumstance when a Division or Department Administrator has declined an invitation to give testimony before a Legislative Committee.  Wednesday, during the Interim Education Committee’s discussion on “Legal Counsel for State Board of Education” (Agenda Item #2), Deputy Attorney General Ray Hintze (HINT-zee) and Education Chief Bill Evans of the Attorney General’s office addressed the committee on the duty and authority of the Attorney General to be the legal advisor to state officers and agencies—including the State Board of Education.  They provided a superb presentation.
 
Recent events related to the employment status of a couple attorneys assigned to the Office of Education under the special counsel of the Attorney General’s Office, have lead to a number of vigorous discussions about the “ultimate” legal authority of the State of Utah.
 
Mr. Hintze and Mr. Evans presented to the committee an Executive Summary titled “Attorney General Position On Who May Appoint Legal Counsel for State Board of Education/State Office of Education” (dated Wednesday, June 20, 2007).  The introduction to the Executive Summary states:
 
“The Attorney General has broad constitutional and statutory powers and duties to provide legal counsel to all state entities and officers unless otherwise provided by the state constitution or statutes.  The State Board of Education and State Office of Education are state entities and state officers.  They do not have any constitutional or statutory exemption that allows them to hire their own attorney.  Therefore, the Attorney General is their sole legal counsel.”

Further, it is the conclusion of the Attorney General that:
 
“The State Board of Education may not hire its own legal counsel without either: (a) a constitutional or statutory exception which allows them to do so, or (b) the approval of the Attorney General.  Until one of those conditions i(s) met, the Attorney General is the sole counsel for that agency.”

Two Sections of state statute support the AG’s conclusions.  They are the following:
 
53A-1-303.   Advice by superintendent — Written opinions.
     (1) The state superintendent shall advise superintendents, school boards, and other school officers upon all matters involving the welfare of the schools.
     (2) The superintendent shall, when requested by district superintendents or other school officers, provide written opinions on questions of public education, administrative policy, and procedure, but not upon questions of law.
     (3) Upon request by the state superintendent, the attorney general shall issue written opinions on questions of law.
     (4) Opinions issued under this section shall be considered to be correct and final unless set aside by a court of competent jurisdiction or by subsequent legislation.
 
53A-1-401.   Powers of State Board of Education — Adoption of rules — Enforcement.
     (1) (a) The State Board of Education has general control and supervision of the state’s public education system.
     (b) “General control and supervision” as used in Article X, Sec. 3, of the Utah Constitution means directed to the whole system.
 
So, even though the State Superintendent of Public Instruction can issue opinions, by statute, it cannot be “opinions on questions of law.”  Opinions on questions of law [according to 53A-1-303(3)] shall be issued expressly by the Attorney General.  Constitutionally (Article X, Section 3), the State Board of Education does have “general control and supervision” of the state’s public education system as a whole.  But, therein lies the extent of their “powers.”  Powers are limited to “the system.”
 
Conspicuously not in attendance at the invitation of Co-Chair Rep. Greg Hughes at our Interim meeting was Mr. Burningham who was asked to participate in the committee discussion to give further input on the recent “dismissal” of the two assistant attorney generals in the Office of Education.  The invitation was not compulsory, on the contrary, the dialogue would have been collegial.  Nobody’s arm was being twisted. 
 
Two days prior to Interim meetings, Kim Burningham sent a letter, dated June 18, 2007, to Senator Howard Stephenson.  (An apparent “break” with standard protocols occurred by not also addressing the letter to House Co-Chair Representative Greg Hughes.)  Normally, I’d give someone in Mr. Burningham’s position a “pass” on this oversight; however, Mr. Burningham spent 14 years in the Utah State House of Representatives (Republican, Districts 56 & 19, 1980-1994) and should know well the proper way to address Legislative Committee Chairs in such correspondence (both of them).  I’m sure it wasn’t a lack of foresight that was the basis for such a breach in etiquette.
 
The Burningham Letter
 
Reproducing Kim Burningham’s letter to Senator Stephenson would be redundant and unnecessary.  (Click HERE for text of letter)  Most would consider Mr. Burningham an intelligent and well-educated person.  A board of bright individuals would certainly elect as their Chair someone of high grammatical and literary caliber.  Therefore, we would have to assume that a short, relatively concise letter would be well-crafted and riddled with implication.

For example, following the brief hearing and rapid decision of the Utah State Supreme Court related to vouchers, Mr. Burningham utilized in his letter the phrase, “after due deliberation” a statement which clearly “judicially” aligns himself, and the board for whom he is speaking, with the high court and their recent conclusions.
 
Mr. Burningham also states in the last sentence of the first paragraph that he, “representing the State Board of Education,” the letter continues, “respectfully decline to send a representative to that gathering.”  Mr. Burninham knows, by virtue of his tenure in the House of Representatives, that Legislative Committee Meetings aren’t “gatherings,” they are deliberative, legal hearings (those giving testimony may be sworn in at the Chair’s discretion).  To refer to a formal committee meeting as a “gathering” has been perceived by some as disingenuous and demeaning.
 
As to the “unclear” role of the Legislature (paragraph two, first sentence) regarding the confidential “business” between the Attorney General’s office and the state board, the Attorney General’s office saw fit to send two representatives from his office to participate in the continuing dialogue.  So, the “confidential” exclusivity between the Board and the AG appears to be rather one sided.  And, as I mentioned before, I cannot recall out of the dozens upon dozens of committee meetings I have attended over the years, any high-level state administrator to “decline” the opportunity to participate in a discussion forum at the Legislature.
 
Also, Mr. Burningham’s word of caution to the Legislature about the “further politicization of the relationship” between the AG and the state board would be “unwelcome” and “ill-advised in any event” could be perceived, by some, as a veiled threat.  (Did Mr. Burningham really attempt to speak for Mark Shurtleff regarding the “politicization of the relationship” between the Board and the AG?  Does Mr. Shurtleff feel further “politicization” would be “ill-advised?”  Is Mr. Burningham now speaking for Mr. Shurtleff?)
 
Keep the Lines Open
 
Honestly, I don’t know what’s in Mr. Burningham’s head.  It’s unfortunate how the dialogue appears to have ground to a screeching stop.  Continued public dialogue (and administrative dialogue) is imperative as we move closer to the election in November.  Further clarification and education—honest education—must occur for the voting-citizens of the State of Utah to make a well-informed, thoughtful choice.  Our children are counting on us.