The third time may be the charm, but not for Pennsylvania’s Charter School Appeals Board.
The six-member appeals board found itself once again hamstrung by legal precedent at its meeting in Harrisburg on Tuesday, when it was unable to render a verdict in an appeal brought by Propel Schools, a network of Pittsburgh charter schools.
It was the third time in six months that the board has voted 3-1, with two members recusing themselves, to reject Propel’s bid to consolidate 13 campuses in Pittsburgh under a single board and administration.
Because of a 2018 Commonwealth Court ruling, however, none of the votes the appeals panel has taken have mattered.
That decision from the appellate court requires a majority of the entire board to vote the same way to settle a dispute — not just a majority of the members are voting.
With two board members recusing themselves from Propel’s case, the appeal is stuck in limbo unless the remaining four members all vote unanimously.
Lawyers representing Propel and Pittsburgh City Schools told the Capital-Star in October that the impasse is costing Pittsburgh taxpayers tens of thousands of dollars in legal fees and travel costs.
The problem has been exacerbated by a longstanding vacancy on the charter appeals board, which makes it “more difficult to get a majority, especially when people recuse themselves,” Lisa Colautti, a lawyer representing the Pittsburgh City school district, said at the time.
Lawyers for Pittsburgh Public Schools and Propel were not present at Tuesday’s meeting at the state Department of Education’s headquarters in downtown Harrisburg.
But in an email after the meeting, an attorney representing Propel called the situation “a complete breakdown of the administrative law process.”
Propel attorney Kathy Clarke said her team was unsure if the meeting was taking place because they did not receive an agenda from the Department until 12:10 p.m. on Tuesday — 50 minutes before the session was scheduled to begin.
Clarke said that she expects the board to cast the same non-actionable vote at its January meeting.
On Tuesday, board members tried to devise tactics to prevent the case from coming before them for a fourth time.
“I don’t think we should be voting on this each month,” board member Mitchell Yanyanin said.
Board members speculated on what would happen if they refused to put the case on the agenda for their next meeting in January.
Mark Zaccarelli, an attorney for the Department of Education, advised against it. He said the board could not legally ignore an open appeal.
He said that Propel would have to reach an agreement with Pittsburgh Public Schools to prevent the case from reappearing on the January agenda.
Zaccarelli recommended that the board table the votes until January.
But board members suggested they should follow their own procedural rules, with one asking Zaccarelli what would happen “if we refuse to heed your advice.”
An exasperated Zacarelli reiterated his recommendation that the board vote to table the items until January.
The board ultimately agreed, on the condition that Zaccarelli ask Propel and the Pittsburgh schools if they’d consent to remove the case from the January meeting agenda.
Eric Levis, a spokesman for the Department of Education, said Tuesday that the case involving Propel was unique, and that the appeals board has not seen other appeals ensnared in a series of non-actionable votes.
Levis said “there may be other remedies” available to the parties, but deferred to their attorneys to explain what options might be available.
With the exception of Education Secretary Pedro Rivera, the current members of the charter board were appointed by former Republican Gov. Tom Corbett — the staunch charter supporter who preceded Democratic Gov. Tom Wolf.
While it’s in Wolf’s power to nominate new appointees to the appeals board, he has not done so since taking office in 2015. His spokesman has cited a lack of cooperation from the Republican-controlled Senate, which must approve the nominees by a two-thirds vote, as an obstacle to confirming new appointees.