On three separate occasions since June, two teams of lawyers from Pittsburgh have traveled to Harrisburg to argue the same exact case before a powerful state board.
And on three separate occasions, the board has told the lawyers the same exact thing: It doesn’t have enough members to render a legitimate verdict.
“We’re like Bill Murray in ‘Groundhog Day,’” Kathryn Clark, a lawyer representing Propel Charter Schools, said after the board’s latest vote Tuesday, referring to the movie where Murray’s character relives the same day over and over again. “It’s a very bizarre position to be in.”
The state Charter School Appeal Board, which mediates disputes between locally elected school boards and charter schools, is currently unable to take action on an appeal brought by the Propel charter school network, which wants to consolidate 13 campuses in Pittsburgh into one entity overseen by a single board and administration.
The Pittsburgh city school district and the Pennsylvania Department of Education both rejected Propel’s request in 2018.
Propel asked the charter appeals board to overturn the decisions, and the entities have been locked in a state of purgatory ever since.
The six-member board says it’s hamstrung by legal precedent that requires a majority of the board — four members — to cast an actionable vote. But since one seat on the board is vacant, and two members have recused themselves in the case, only four board members are able to vote on the appeal.
That wouldn’t be a problem if all four members voted the same way. But they’ve split 3-1 at three meetings since June to reject the appeal, falling short of the four-member majority they need to put the case to rest.
Lawyers say the fluke is costing taxpayers tens of thousands of dollars in legal bills and travel costs for their repeated trips to Harrisburg. Appeal board members are allowed to attend the meetings by phone, but Clark said attorneys and administrators arguing the cases must appear in person.
The problem has gotten so intractable that lawyers for Propel are hoping that Julie Cook, a charter school teacher and the lone dissenter among the board’s voting members, will join her colleagues in a 4-0 decision to reject the appeals.
It would be a defeat, but at least it would allow them to bring the case to Commonwealth Court.
“At this point, it’s in our client’s interest to get a decision that’s not in our favor,” Alan Shuckrow, another attorney representing Propel, said. “We need to move this along.”
With the exception of Education Secretary Pedro Rivera, all sitting members of the charter board were appointed by former Republican Gov. Tom Corbett. All are serving expired terms.
Current Gov. Tom Wolf, a Democrat, hasn’t put forth any nominees to the charter appeals board since he took office in 2015. Nor has he taken action to fill the board’s single vacant seat.
Wolf’s nominees must be confirmed by two-thirds of the Republican-controlled state Senate.
Shuckrow and his opposing counsel from the Pittsburgh City schools argue their case is a consequence of Wolf’s failure to repopulate the board, which experts say has unparalleled power in Pennsylvania.
“Numerically, the fact that there’s a vacancy means it’s more difficult to get a majority, especially when people recuse themselves,” Lisa Colautti, a lawyer representing the Pittsburgh City school district, said. “That’s not a political statement, that’s a statement of fact.”
Democratic Sen. Lindsey Williams, whose Allegheny County district includes parts of Pittsburgh, said the case underscores the need for Wolf to nominate new appeals board members.
“The fact that we haven’t reappointed empty seats … that holds up a lot of school districts,” Williams said. “It’s not good for taxpayer accountability, and we should do our work here in the Senate to make sure we find an agreement to make new appointees.”
A spokesman for Wolf told the Capital-Star in March that the governor was working with the Senate to make appointments. But on Tuesday, he suggested those negotiations had reached a standstill.
“Governor Wolf empathizes with these parties and stands ready to nominate individuals once there is an agreement with the Senate to bring such nominations to a vote and confirm them,” Wolf spokesman J.J. Abbott said. “At this time, that has not materialized.”
Jenn Kocher, a spokeswoman for Senate Majority Leader Jake Corman, R-Centre, said on Tuesday that she was unaware of any potential nominees coming up for a vote.
Unless Wolf and the Senate can agree on new appointees before the board’s next meeting in December, lawyers in the Propel case see one other way out of their quagmire: an intervention from the Commonwealth Court clarifying existing charter school law.
Such a move could topple the precedent that’s currently stymieing the board’s vote, Shuckrow said. And it may be the only way for lawyers to avoid another pointless trip to Harrisburg for the board’s next meeting in December.
“The Commonwealth Court needs to take a fresh look at this statute,” Shuckrow said, shortly before the lawyers piled into a shared car to start their three-hour trip back to Pittsburgh. “The Commonwealth Court needs to look at this, because otherwise it’s just going to keep happening.”
This story was updated at 6:15 p.m. on Tuesday, Oct. 22 to include statements from Kocher and Abbott.