State schools chief sues 7 districts over use of levy dollars

OLYMPIA — Superintendent of Public Instruction Randy Dorn sued Tuesday to stop seven school districts, including Everett, from using local levy dollars to pay teacher salaries and other expenses of basic education.

Dorn contends it is illegal for districts to do so and the common practice enables the state to avoid its constitutional responsibility to amply fund Washington’s public school system.

“If this option of using local levies is taken away it will force the Legislature to carry out their responsibility and fulfill their oath of office,” Dorn said. “This (lawsuit) is trying to force the issue.

“Do I blame school districts from doing what they are doing? Absolutely not,” he said. “They were led down this path by the Legislature.”

The lawsuit, filed in King County Superior Court, names the Everett, Seattle, Bellevue, Spokane, Tacoma and Puyallup school districts, as well as Evergreen School District in Vancouver. The state also is a defendant because the use of local levies is a creation of state law.

Dorn’s lawsuit contends that the state Supreme Court has made clear the state must provide ample funding for public schools “by means of dependable and regular tax sources.” Using local levy dollars doesn’t meet that test because they are susceptible to shifting property values and the whim of the electorate.

Rather, the court has said any money raised from local property tax levies approved by voters can only be spent on enrichment programs.

But Dorn argues the court’s McCleary decision — which gives the state until 2018 to fully fund public schools — doesn’t make clear whether it’s okay for school districts to use local tax dollars for basic education in response to not receiving enough money from the state to cover those costs.

What’s happened is most of the state’s 295 districts are resorting to the use of supplemental contracts funded by levy dollars to boost employee pay. These contracts provide additional money for extra time, responsibility, and incentives or TRI, and can add up to tens of thousands of dollars a year in additional earnings.

In the 2014 school year, the average statewide pay for teachers was $52,944 but the average actual salary was $66,605. The difference of $13,661 came from local levies, according to the suit. For administrators, the difference worked out to $55,136 annually and with classified staff it totalled $14,091, the suit contends.

“Over time, the Legislature has allowed these contracts to become a substantial part of teacher pay, allowing the Legislature to avoid paying for increases in the cost of living or market rate adjustments. In so doing, the State has fallen farther and farther behind in amply funding basic education,” the lawsuit reads.

“School districts have been complicit in this abdication of responsibility in agreeing to larger and larger TRI contract packages in exchange for fewer and fewer services that are beyond the scope of basic education,” it adds.

In the Everett School District, nearly 85 cents of every local levy dollar is spent on salaries and benefits of employees through the TRI contracts. That’s according to a presentation district officials made to state lawmakers in 2015.

At that time, district officials said state funding covered 72 percent of a certificated teacher’s earnings, 63 percent of an administrator’s salary and 62 percent of a classified employee’s wages, according to the district.

Everett schools Superintendent Gary Cohn and school board president Ted Wenta issued a statement Tuesday saying the district “complies with the system” set up the Legislature in order to pay competitive wages and serve the needs of a growing student population.

“We will continue to support and promote student achievement while we wait for the state Legislature to fully fund education,” they said.

According to the lawsuit, in the 2014-15 school year, Everett schools paid beginning teachers a salary of $46,126, of which $33,483 came from the state and $12,643 from levies. For teachers at the top of the scale, levy-funded supplemental contracts added up to $30,370 annually, allowing them to earn $96,508 rather than the $65,778 provided by the state.

For an Everett school teacher to reach that plateau, he or she must have 29 years experience, a master’s degree and have earned at least 135 additional credits of professional education.

“If Superintendent Dorn thinks Everett is actually paying for what is legally basic education, then he should be suing the state to pay for these extras according to the state’s Constitutional obligation; he should not be suing Everett Public Schools,” Cohn and Wenta said.

The lawsuit drew support from both sides of the political spectrum.

“Unions have been sabotaging school services by siphoning levy funds as pay raises,” wrote Jami Lund, senior education policy analyst for the Freedom Foundation, a conservative think tank. “Using finite levy funds for increasing pay is unsustainable, and Supt. Dorn is right to seek to end it.”

Lisa Macfarlane, state director of Democrats for Education Reform, said she hoped the efforts helps “stop the madness” of local levies getting used to plug gaps left by a lack of state funding.

Districts are violating state law and the constitution “not because they want to be doing this but because of the Legislature’s lack of action.”

The lawsuit seeks to reduce but not eliminate local levies. Dorn said he wants a judge to set a date after which districts can no longer spend those dollars on basic education.

He said he hoped it would not be until 2018, which is the deadline imposed by the Supreme Court in the McCleary case.

Attorney Harry Korrell of Davis Wright Tremaine in Seattle is representing Dorn, in his capacity as schools superintendent, in this case. Dorn said he’s set aside $100,000 of the agency’s budget to carry out the legal fight.

Dorn is retiring at the end of the year. It is unknown what will happen if the case is not resolved and his successor wants to drop it.

Also unknown Tuesday is whether the school districts will have their legal expenses covered through a risk management pool or if each must pay to fight on their own.

Dorn began considering the lawsuit last year after he requested a legal opinion from Attorney General Bob Ferguson on whether school board members have the authority to use local levies for compensation related to basic education services.

Ferguson declined, saying Dorn’s question came too close to issues encompassed by the ongoing McCleary case.

Then last week Dorn said he was prepared to end the effort if the Supreme Court had set a deadline for the use of local levies. Justices didn’t, deciding instead to schedule another hearing Sept. 7 to get an update on lawmakers’ progress in complying with the McCleary decision.

“What I heard from the Supreme Court is they are going to kick the can,” he said. “The longer we wait, the worse it gets.”

Jerry Cornfield: 360-352-8623; Twitter: @dospueblos

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