Keim v. Douglas County School District

2015 COA 61, 399 P.3d 722, 2015 Colo. App. LEXIS 689
CourtColorado Court of Appeals
DecidedMay 7, 2015
DocketCourt of Appeals No. 14CA0268
StatusPublished
Cited by2 cases

This text of 2015 COA 61 (Keim v. Douglas County School District) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keim v. Douglas County School District, 2015 COA 61, 399 P.3d 722, 2015 Colo. App. LEXIS 689 (Colo. Ct. App. 2015).

Opinions

Opinion by

JUDGE GABRIEL

¶ 1 In this campaign finance dispute, respondent, Douglas County School District (the District), appeals the final agency decision of an administrative law judge' (ALJ). The ALJ found that the District 'violated Colorado’s Fair Campaign Practices Act (FCPA), § l~45-117(l)(a)(I), C.R.S.2014, -when it contracted for and disseminated a report by Dr. Frederick M. Hess and Max Eden of the American Enterprise Institute [724]*724(the Hess Report). We conclude that the Hess Report was not given, directly or indirectly, to any candidate for the purpose of promoting that candidate’s election. Accordingly, we further conclude that the' dissemination of the Hess Report did not constitute a “contribution” under, and the District therefore did not violate, the FCPA in this case. We thus reverse the ALJ’s order.

I. Background

¶ 2 The District is a political subdivision of the state and is therefore subject to the FCPA. See, Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist., 2013 COA 20, ¶ 37, 356 P.3d 833 (cert. granted Mar. 17, 2014); § 1-45-117(1)(a)(I).

¶3 According to petitioner, Julie Keim, beginning with the school board election of 2009, the District began implementing what has been referred to as a “reform” agenda, and after the 2011 school board election, all seven members of the Douglas County School Board (the Board) supported this agenda, as did the District’s then newly appointed superintendent, Dr. Elizabeth Cela-nia-Fagen. Keim was a candidate for one of four open positions on the Board in the November 2013 election.

¶4 On February 6, 2013, the District signed an Independent Contractor Agreement with the American Enterprise Institute (AEI). This agreement (the AEI Agreement) provided that AEI would “research, create, and publicize” a white paper that ultimately became the Hess Report. At the time the AEI Agreement was- signed, no one had declared that he or she would be> a candidate for any of the Board seats 'that would be open in the 2013 election. Moreover, the AEI Agreement provided that it would terminate on December 31, 2013, unless the required services were completed or the Agreement was terminated by either party, thereby suggesting that the white paper was not required to be.completed until almost two months after the 2013 election.

¶ 5 The AEI Agreement’s “Scope of Services” stated that the white paper would:

a.Describe Douglas County, the school system, and Superintendent Fagen’s background and expertise.
b. Describe some of the problems that Douglas County’s efforts are meant to address.
c. Describe what Douglas County is doing in terms of curriculum, instruction, programs, systems in place, etc.
d. Explain how this is new and different; describe some of the advantages of the model.
e. Delineate some of the challenges Douglas County faces based on this ■ model.
f. Explain lessons learned from the model.

¶ 6 The District agreed to pay AEI $30,000, inclusive of expenses, to complete its work under the AEI Agreement. Ultimately, the District paid $15,000 of this sum, with the remainder being paid by the Douglas County School District Foundation. The amount paid by the District was funded by a grant that the District had received from the Daniels Fund.

¶ 7 Hess and his research assistant, Eden, undertook the tasks required by the AEI Agreement, and the record reflects that their work was not intended to be a wholly independent review and evaluation of the District. Rather, Hess and Eden worked with the District to provide a report that the District would ultimately review and approve.

¶ 8 Toward that end, in advance of a trip to Colorado to collect information, Eden wrote to the District’s Community Relations Officer:

Ideally we woüld love for you all to help us help you. We can touch base on this as the date draws closer, but we would prefer not to go out there with a blank slate. Rather, we would prefer it if you would tell us what you want us to focus on, what is most worthy of attention, what you’d like to see written about and what your general angle on it (and the paper) is. This is just something to flag to Dr. Fagen so she can mull it over a bit. Perhaps all of the interviews are already lined up with a certain focus in mind, but if not we encourage you to tailor our time out there to directed interviews with folks that you want to [725]*725make a particular point of in us meeting and writing about them.

¶ 9 Likewise, AEI provided a draft version of the report to the District on July 31, 2013, and a significant number of changes were made thereafter, with at least some of these changes being requested by representatives of the District.

¶ 10 In the weeks just prior to the release of the completed Hess Report, Eden asked the District’s Community Relations Officer to obtain a quote from Superintendent Fagen about how important the then-upcoming school board election was. This quote was to accompany the release of the Hess Report, although the quote was to be included in an op-ed to be placed by Hess in an online periodical, not in the Hess Report itself. Superintendent Fagen did not ultimately provide such a quote, but the president of the Board did. His quote read, “The teachers’ union would like to return to the days of big payouts for union officers, ... ending, choice for students, and rewarding bad performance. This election presents a clear choice between union interests versus what is best for our students.”

¶ 11 The District received the final version of the Hess Report in September 2013. For present purposes, several portions of the Report are pertinent:

• The introduction to the Hess Report indicated that it would provide (1) “a look at the ambitious reform effort” in Douglas County, which county the Hess Report described as a “Republican bastion”; (2) “a case study examining cage-busting leaders seeking to reimagine schools and school systems”; and (3) “a chance to see a vision of unconventional, bold leadership in practice.” The introduction further noted, however, that the Hess Report was not intended as an evaluation or endorsement of the Douglas County effort.
• The Hess Report described the reform agenda as (1) “perhaps the nation’s boldest attempt at suburban school reform”; (2) “unusually ambitious”; (3) “remarkable in the annals of contemporary school reform”; (4) “radically different”; and (5) “remarkable and illuminating.”
• A section of the Hess Report entitled, “Electing a Reform Board,” described the history of the then-existing Board and the appointment of Superintendent . Fagen.
• The Hess' Report contained brief biographical profiles of the existing Board members.
• The Hess Report observed that Douglas County was “a compelling illustration of how a unified board majority can fuel rapid, ambitious reform” and noted that the Board’s “cohesion” and “focus” were striking.
• The Hess Report referenced the upcoming school board election and noted the rumors that the American Federation of Teachers might spend substantial sums to defeat the .incumbents who were running for re-election.

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Cite This Page — Counsel Stack

Bluebook (online)
2015 COA 61, 399 P.3d 722, 2015 Colo. App. LEXIS 689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keim-v-douglas-county-school-district-coloctapp-2015.