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Jonathan Day

The law and the Early To Rise petition process

Much has been made about the obscurity of the state law that allows for the petition process that the Early To Rise folks have followed to put an item on the ballot that would raise money for pre-K education in Harris County. The Chron takes a closer look at the statutes in question and the requests for clarification on them from the Attorney General.

When the campaign first launched earlier this summer, Emmett said he believed the law was not applicable because it no longer was on the books, saying the state “didn’t recodify these sections and you can’t find these anywhere in state statutes today.”

The state law stipulating the petition process – two sections of the Texas Education Code, specifically – was repealed in 1995 when the Legislature reorganized the education code, according to campaign and county lawyers.

The law, which dates to the 1920s, gave county education departments in the state authority to levy a so-called “equalization tax” to raise revenue for “the support of the public schools of the county.” Unlike school districts, whose governing bodies can raise taxes by a vote, the equalization tax can be authorized only by an election called via citizen petition.

Under the education code, a county education department operating under those repealed sections “may continue to operate under” them, meaning those sections stipulating the petition process still apply.

That fact is conceded in two separate requests for a legal opinion sent to the state attorney general this month on the applicability of the law, one from County Attorney Vince Ryan on behalf of [County Judge Ed] Emmett and another by state Sen. Dan Patrick.

However, Patrick wrote, whether the education department could operate under those repealed laws if its tax rate is increased still is in question.

Emmett’s objections recently have come down to whether the ballot language proposed on the petitions is consistent with the repealed sections.

The petition language says the revenue generated is “to be used solely and exclusively for early childhood education purposes,” which does not appear to fit the definition of an equalization tax “to be distributed equally among all school districts” in the county.

One of the leaders of the petition group, Jonathan Day, a former city of Houston attorney, said the law does not say exactly what the ballot language must be. He also pointed to other sections of the law that stipulate broad uses for equalization tax revenue, including “for the advancement of public free schools in such counties.”

The education department is “already spending money on early childhood,” Day noted.

I’m not even going to try to guess what AG Greg Abbott will write in his opinion. I do know that county education departments used to be common in Texas, but as of today there are only two left, in Harris and Dallas, and this is undoubtedly why those statutes were modified or repealed back in 1995. It’s just a muddle, and I will say again, it will ultimately be settled in court. The story also notes that Emmett will announce his decision about whether or not to put this on the ballot on Monday, which is the deadline for making such a decision in time for the election. I presume we will have AG Abbott’s opinion by then as well, but I’m just guessing.

Finally, the Early To Rise plan

This is what we’ve got after their presentation to the HCDE Board of Trustees on Tuesday.

On Tuesday, the Harris County School Readiness Corp. pitched its plan to expand early education at a five-hour gathering with wary trustees for the Harris County Department of Education. The corporation’s proposal suggests that if voters approve a ballot initiative expanding the education department’s taxing authority by 1 cent per $100 of assessed value, the public agency should contract with the nonprofit to administer the estimated $25 million collected each year.

“Help is not on the way,” said Jonathan Day, a member of the corporation’s board, about the need to improve early childhood education programs in Harris County. “We’re not going to get help from the federal government, or the state government. We believe this needs to start here on a local level.”

Responding to public and trustee concerns about accountability, the proposed 10-year contract would allow the department to appoint half of the agency’s governing board, to approve rules for spending tax dollars and to review 14 areas of performance.

A three-member staff of the corporation would contract with existing education groups to expand training for teachers and buy school supplies for child care centers serving children up to age 5.

See here for the previous update. The bit about allowing HCDE to appoint half of the governing board is a step in the right direction. Even better news is that at long last we have some firm details. Here’s a draft services agreement, and the Harris County School Readiness Corporation policies on accountability and conflicts of interests. Both came in late Wednesday via Houston Politics. I haven’t had the chance to read through them, but there they are.

There’s another wrinkle in all this, as noted by this story from before the presentation.

Before the department’s board can vote on any agreement, it must go through a state-mandated request for proposals, according to education department officials.

“We presume we’ll get at least one,” chuckled Superintendent John Sawyer, who represented the department in initial negotiations.

Jonathan Day, a member of the corporation’s board and a former Houston city attorney, said he is confident the request for proposals will not slow down the group’s reaching an agreement in the narrow window before the November election.

“We think this kind of structure we have proposed is the right one. We hope the board will agree,” he said. “But look, we’d be happy if somebody else could do this better than we can.”

I rather doubt there’s another group out there in position to submit a bid, but you never know. It’s not clear what happens if the measure passes but the Harris County School Readiness Corporation fails to reach an agreement with the HCDE. Does that mean that the HCDE board can choose not to implement the tax increase, thus essentially nullifying the election, or does it mean another round of RFPs?

Of course, first this has to make it to the ballot.

Harris County Tax Assessor-Collector Mike Sullivan has until Monday to verify at least 78,000 of the 150,000 petitions submitted by the group, which could trigger the proposal’s appearance on the ballot. The county attorney and state Sen. Dan Patrick, R-Houston, have asked the attorney general’s office to clarify what Judge Ed Emmett must do if the minimum level of signatures are verified, arguing the initiative process used may not still be in effect.

I don’t think there’s any doubt that enough petition signatures were collected. The AG opinion is still the big unknown, but as I’ve said all along, I expect this to eventually be settled in court. How long that might take, and whether it affects the ballot this year or not, I have no clue. KUHF has more.

Time for more information about Early To Rise

What Lisa Falkenberg says.

They’ve turned over more than 150,000 signatures in favor of putting an early education tax on the Harris County ballot in November. Now the folks behind the Early to Rise campaign need to turn over the details.

Actually, they should have turned them over a while ago. The well-meaning folks who signed the petition did so with only the vaguest notion that, somehow, they’d be helping kids, and our community. But some of us need a little more information.

The petition said only that it was authorizing the Harris County Department of Education to levy a tax of one penny per $100 of assessed home value “for early childhood education purposes to improve success of children in kindergarten and beyond.”

A fact sheet called the effort a “public/private partnership” that will provide training, assistance and equipment to preschool programs and parents. Clicking on “take a deeper look at the Early to Rise Plan” on the group’s website won’t get you any deeper. It gives the basics and a list of board members who would lead a newly formed nonprofit to administer the tax funds.

Those board members include respected community leaders such as James Calaway of the Center for Houston’s Future, former Houston first lady Andrea White and the Rev. Kirbyjon Caldwell. But their good names aren’t enough. We need a detailed proposal, in writing, that spells out how money will be distributed, to what kinds of operations, under what criteria? How many families will be helped? How many children? At what age?

Not to mention how will the board members be chosen, what kind of oversight will they be subject to, what kind of disclosures will they have to make to ensure that any conflicts of interest can come to light, what is the process to remove a board member that needs to be removed, etc etc etc. We know these answers for elected officials, and we know these answers for boards and whatnot that are appointed by elected officials. We know none of that for Early To Rise and the Harris County School Readiness Corporation. The American Prospect, which has a nice overview of Early To Rise and the story so far, suggests that they don’t really have a good answer to these questions.

The obvious concerns over handing the revenues to an unelected nonprofit board are not lost on the leaders of Early to Rise. However Jonathan Day, a former city councilman and one of the Early to Rise board members, argues this is much better than the alternative of letting the Harris County Department of Education administer the program, which would politicize the process. The Department of Education has had its share of political drama, including hiring a former county commissioner and convicted felon as its lobbyist. Day worries that by giving the Department of Education control over the process, childcare centers would get selected for the program based on political advantage rather than need. He says that’s already become a problem with charter schools. “We have some bad charter schools. Are we able to close ‘em down?” he says. “Every one of those charter schools has a bunch of defenders, [including] the state representative.” By putting the money in the hands of an unelected body, Day believes the program will avoid many of the same political problems. “You can to a very significant extent, avoid those kinds of results which are very damaging,” he says, and notes that the Department of Education would still have oversight.

Day was a City Attorney, not a City Council member, but never mind that. I don’t get making HCDE out to be nefarious, especially since this proposal isn’t going to go anywhere without HCDE’s support. I agree that the hiring of Jerry Eversole was a forehead-slapping move, but he was hired for the purpose of lobbying Commissioners Court to back off its efforts to get a bill passed to kill the HCDE. I personally wouldn’t touch Eversole with a ten-foot pole, but that is a role for which he is qualified. Most of the actual political drama on HCDE had to do with a faction that never numbered more than one or two that was on board with the kill-HCDE agenda. The biggest, and possibly sole, protagonist of this was Michael Wolfe, who was defeated in 2012. Outside of Wolfe, the drama level at HCDE has been remarkably low. Bringing up charter schools is a distraction, since they have nothing to do with any of this, and besides, the Lege passed a bill this past session that among other things will – in theory, at least – make it easier to shut down substandard charters. Finally, I can’t believe that Jonathan Day is naive enough to think that an unelected and not-selected-by-electeds board would be less subject to political pressure or less tempted by favoritism than any other board. This goes right back to the question of oversight and what the consequences are for misbehavior. We need to have some assurances that our tax dollars are being used appropriately. That is not too much to ask.

Back to Falkenberg:

Bob Sanborn, CEO of the nonprofit watchdog organization Children at Risk, says he shares many of [County Judge Ed] Emmett’s worries: “I don’t really trust the governing structure. I don’t trust the taxing entity it’s going through, and that becomes a little problematic. This whole idea of unelected boards – what happens when they change membership?”

At the same time, he said he told Emmett in a conversation a while back, “you know, in the end, if this is on the ballot, it’s pro-children and I have to support it.”

I think that’s where many of our hearts are. Now the folks at Early to Rise just have to persuade our minds.

Yeah, that’s where I am, too. But it’s a huge leap of faith, and it’s one none of us should have to make. We’ll know on Tuesday what the plan is for HCDE. I sure hope these concerns get addressed.

More on the HCDE pre-k proposal

Some more details on that pre-k proposal being pitched to the HCDE. It raises more questions than it answers.


Members applauded the effort by the recently formed Harris County School Readiness Corp., a non-profit group whose membership includes business, philanthropic and community leaders, including former Houston first lady Andrea White. At the end of the meeting, they voted 6-1 to allow Superintendent John Sawyer, who was absent Tuesday, to further study the plan and bring back a recommendation for how to proceed.

The tone of the discussion, however, took a drastic turn during a question-and-answer session after a member of the corporation, former Houston city attorney Jonathan Day, presented the plan to the board with Carol Shattuck, president and CEO of partner group Collaborative for Children.

New trustee Howard Jefferson, who had just been sworn in, asked Day to describe the proposed terms of any agreement between the department and the corporation, and what responsibilities the department may have.

Explaining “work will be done by non-profit service providers,” Day told him “the control of the program in terms of allocation to various providers would be in the hands of the non-profit,” not the agency.

He went onto explain, admitting his bluntness, that the group wanted to avoid having the education department board handle the program because of its reputation as a stepping stone for higher political office. He also alluded to recent criticism the agency has faced for hiring lobbyists, including former county commissioner Jerry Eversole, who resigned in October 2011 after being accused of taking cash bribes in exchange for contracts.

“I think this kind of a structure will really work well,” Day said. “I’ll be very blunt with you, we are aware of the criticism about the structure of this board… But we thought that a nonprofit is a way to provide stability and to provide the assurance of the public that this is going to be mired down in partisan controversy.”


Board President Angie Chesnut and Board Vice President Debra Kerner, alluding to an earlier discussion, then asked Day, whether the the trustees would be able to appoint a member to the corporation’s board.

“Is that something we were still considering?” Kerner asked.

“That’s a matter we need to discuss,” Day replied. “It’s something that we are open to, but to be very blunt… we would like to avoid to the maximum extent possible the problems and perceptions of the partisanship and disagreements, we do not want to import that into our board.”

Chesnut then told Day: “I have to be honest with you, also. I will not support this process without having participation on your board.”

A clarification: In my previous post, I said that the HCDE approved the plan. As you can see from the first paragraph quoted above, all they approved was for Superintendent Sawyer to study the plan. I just misread the story on which I based that statement. My apologies for the confusion.

From this post, and from Big Jolly’s account of the HCDE meeting, it sounds like this idea isn’t fully formed yet. It would certainly help if the Harris County School Readiness Corporation would get their website and Facebook pages up so we can examine their plan in more detail, and give them feedback directly. I do think the HCDE Board needs to appoint at least one member to the School Readiness Corp’s board – at least two would be better. But really, just getting all the i’s dotted and t’s crossed would go a long way. I think this is fated to wind up in court one way or another, so while Judge Emmett is soliciting opinions from the County Attorney and the Attorney General about the legalities of all this, it would be wise for the HCSRC to get and publish its own opinion. Who knows, maybe there’s a less dicey way to make this happen. But let’s get some more information, no matter what else. Stace has more.

Would you pay more for pre-K in Harris County?

You might get the chance to vote on it.


The recently formed Harris County School Readiness Corp., a group whose membership includes former Houston first lady Andrea White, is circulating a petition calling for the placement of an item on the next election ballot that would increase the county property tax rate by 1 cent, generating about $25 million a year to train teachers and buy school supplies for child-care centers serving children up to age 5.

“All the recent brain science development has indicated that early childhood education is absolutely pivotal,” said Jonathan Day, a member of the corporation’s board and a former Houston city attorney. “The business community and academics, everybody’s of the single mind that, if there is a single point of investment for leverage to improve children’s education, it’s at early childhood.”

The initiative stems from a recommendation made in an April report commissioned by the Greater Houston Partnership and the Collaborative for Children. It is similar to one launched by San Antonio Mayor Julian Castro, which ended in voters last year approving a modest sales tax hike to build new pre-kindergarten centers.

The corporation, however, faces several big hurdles before voters have a say.

Chief among them: Harris County Judge Ed Emmett, who says he believes the state law dictating the petition process the group is following is no longer valid.

While most county-related matters require the approval of the five-member Harris County Commissioners Court, the corporation is going by a process laid out in a state law that technically no longer is on the books that says county judges must call elections to increase the tax rates of county education departments if enough signatures are collected on a petition. The corporation will have to gather at least 78,000.

While conceding that the group’s legal interpretation “may be right” and describing childhood education as “a great need,” Emmett said he believes that portion of the education code no longer applies, and has asked the county attorney’s office to review it.

“I’m going to ask probably even the attorney general if I have to,” Emmett said, expressing a declining lack of confidence in the education department for hiring lobbyists to visit court members and state lawmakers. “They didn’t recodify these sections and you can’t find these anywhere in state statutes today.”

The issue here is that only two counties, Harris and Dallas, still have education departments. As is often the case, the laws on the books don’t quite line up with current reality, and as such there’s an ambiguity. Judge Emmett will seek counsel about that, as he should, but it’s a lead pipe cinch that if this election goes forward and the proponents of raising the tax rate win, someone will file a lawsuit to invalidate it. I can already hear Paul Bettencourt and the Hotze brothers cracking their knuckles in anticipation. Hell, there will probably be a lawsuit even before the election if enough petition signatures are collected to require one. At least then we’ll have a more definitive answer to the Judge’s question, though it might be quicker to just wait till 2015 and try to get a bill passed to clarify matters then.

Be that as it may, getting to the point of having an election is no sure thing. As Campos calculates, it’ll take about 78,000 signatures to clear that bar. I’m not exactly sure what that is based on – it’s always some percentage of the turnout of the previous election, but what that percentage is and which election it’s derived from are unknown to me. It’s also not clear to me that this would pass if it made it onto the ballot. The San Antonio pre-k initiative that Mayor Julian Castro championed passed with 53.56% of the vote, which is solid but not overwhelming and it happened in a city rather than a county in a high-turnout election. It’s easy to visualize the campaign against this initiative, no matter how good it sounds on paper. Don’t get me wrong, I like the idea, I’m just saying it’s far from a slam-dunk.

There’s not a lot of information out there about the Harris County School Readiness Corporation right now – no webpage or Facebook presence, though I am told both will be up soon. I did get this press release yesterday, which fills in a few blanks.

Houston: Citizens for School Readiness made a presentation today to the Harris County Board of Education on the importance of early childhood education. The Board received a report commissioned by the Houston Endowment and conducted by the Greater Houston Partnership and Collaborative for Children, demonstrating the need for improved early education. Also presented to the Board was a plan to place a ballot measure before the voters this November that would create a dedicated revenue stream for early childhood education.

The additional revenues will be overseen by the Harris County School Readiness Corporation, a public/private partnership board headed by Mr. James Calaway, Chairman of the Board of the Center for Houston’s Future. Also serving on the board is Houston’s Former First Lady, Mrs. Andrea White, as well as Pastor Kirbyjon Caldwell of Windsor Village United Methodist Church, Mr. Jonathan Day former Houston City Attorney and civic leader, leading Houston businessman Mr. Lupe Fraga, Ms. Y. Ping Sun, and Ms. Laura Jaramillo, Senior Vice President of Wells Fargo.

A poll conducted by Dr. Richard Murray of the University of Houston found strong support for the proposed measure. Dr. Murray’s survey showed, “Nearly 70% of county voters said a local effort to improve early childhood education in Harris County should be a priority.”

“People from every sector of this city recognize the critical importance of strengthening early childhood education for our youngest children. Kindergarten is the new first grade, and children need to enter kindergarten already knowing their ABCs and with their skill sets already developed.” said Mr. Jonathan Day, referencing numerous studies that tout the long-term social benefits of early childhood education programs.

There’s more, so click over and read the rest. Like I said, I think the hill is a lot steeper than Dr. Murray’s poll suggests, but I daresay the pro-pre-K group won’t be outspent. What do you think about this?

UPDATE: HCDE trustees approve the plan, which has a wrinkle I didn’t catch the first time around.

The Harris County Department of Education board of trustees voted 6-1 Tuesday to allow its superintendent to review a proposal calling for a 1-cent increase to the agency’s tax rate to fund early childhood education programs. Board members, however, expressed concern about the lack of oversight they may have under the proposal, pitched by recently formed nonprofit Harris County School Readiness Corp.

The group’s plan, which it presented to the board on Tuesday, involves collecting at least 78,000 signatures on a petition, which would – according to a 1937 state law – require the county judge to place the tax hike on the next election ballot.

The increase would generate an additional $25 million a year, which would be used in part to train teachers to staff child-care centers in the county serving children up to age 5. If voters were to approve the hike, the nonprofit’s plan says its own board would administer the new revenue.

The item approved by the board Tuesday allows the superintendent to review the plan and later bring a recommendation back to the board.

I’m a little uncomfortable with the funds being administered by the unelected board of a nonprofit. See CPRIT for the reasons why. I’d still like to see pre-k funding happen, but I’d like to know more about how these funds would be administered.