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IN THE CIRCUIT COURT OF THE STATE OF OREGON

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FOR THE COUNTY OF BENTON

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State ex rel KINGS VALLEY CHARTER SCHOOL, an Oregon public benefit nonprofit corporation,

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Relator, v. PHILOMATH SCHOOL DISTRICT 17J BOARD OF EDUCATION, an Oregon Common School District,

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Defendant.

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Case No. 12-10401 RELATOR’S MOTION FOR SUMMARY JUDGMENT ORCP 47 The Hon. Janet Holcomb ORAL ARGUMENT REQUESTED (Estimated time: one half hour)

MOTION Relator hereby moves the Court for an Order granting Summary Judgment,

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pursuant to ORCP 47, in favor of Relator, as there is no genuine issue as to any 19

material fact and Relator is entitled to judgment as a matter of law. 20 21 22 23

This Motion is supported by the pleadings and court file in this matter as well as the Declaration of Mark Hazelton in Support of Relator’s Motion for Summary Judgment and the Exhibits attached and incorporated thereto.

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MEMORANDUM OF LAW

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This matter is before the Court on an Alternative Writ of Mandamus which

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commands Defendant either to pay to Relator all funds due based on Relator’s status

1—Relator’s Motion for Summary Judgment

Blair Bobier, Esq. POB 1233, Corvallis OR 97339 503.559.6176

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as a “remote small elementary school,” or to show cause why Defendant has not done

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so as commanded by the Writ. The precise issue now before the Court is whether

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Relator is entitled to these funds as a matter of law, pursuant to OAR 581-023-0106 and

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other applicable provisions of Oregon charter school law.

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STANDARD OF REVIEW

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The Court shall grant a Motion for Summary Judgment if there is no genuine 7 8 9

issue as to any material fact and the moving party is entitled to prevail as a matter of law. ORCP 47. STATUS OF THE PARTIES

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Relator Kings Valley Charter School (KVCS) is an Oregon public charter school

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and Oregon public benefit nonprofit corporation located in Philomath School District 17J

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in Benton County, Oregon. Public charter schools receive public funding pursuant to

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state law and a written contract, called a charter, between the charter school and a

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sponsor.

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Defendant Philomath School District 17J Board of Education is the duly elected public body responsible for Philomath School District 17J (Philomath School District)

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and is the sponsor of KVCS pursuant to a Charter first adopted on August 31, 2001. 19

The charter has been amended a number of times by mutual consent of the parties and 20 21 22 23 24

was renewed on May 23, 2011, for a period ending on June 30, 2016. The terms of the May 23, 2011, Charter and applicable provisions of federal and Oregon laws and regulations govern the relationships of the parties. HOW REMOTE, SMALL SCHOOL FUNDING IS ALLOCATED TO CHARTER SCHOOLS

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Funding for charter schools comes from the State School Fund and Local revenues. State School Fund moneys are distributed to charter schools through the 2—Relator’s Motion for Summary Judgment

Blair Bobier, Esq. POB 1233, Corvallis OR 97339 503.559.6176

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charter school’s sponsor. The funding calculation uses a factor known as the Weighted

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Average Daily Membership (ADMw) which is determined according to ORS 327.013 and

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OAR 581-023-0106. Funds are first distributed from the State School Fund to the

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sponsoring district and then are distributed from the district to the charter school according to state law and the terms of the charter. The school district is paid by the state according to the district’s overall ADMw,

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which includes the charter school’s ADMw. ORS 338.155(1). The charter school is then paid by the district according to the charter school’s ADMw. ORS 338.155(1)(c); OAR 581-023-0106(5). This is made clear by ORS 338.155(2) which provides that the

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district payment to the charter school “shall equal an amount per weighted average

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daily membership (ADMw) of the public charter school that is at least equal to” the

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minimum amount which a school district must “pass through” to the charter school per

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ORS 338.155(2)(a) and ORS 338.155(2)(b). ORS 338.155(2) (emphasis added). A

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charter school and its sponsoring district may agree to funding which exceeds this

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minimum. ORS 338.155(7). That the funding which Defendant is contractually obligated to pay Relator is

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based on the ADMw of the charter school is confirmed by the Charter between the 19 20 21 22

parties which provides that the funding calculation is determined by “a base level of funding that is…multiplied by the ADMw of KVCS for all students…”. Hazelton Declaration, Exhibit 1, Charter, Section 10(b)(1), (emphasis added). Appendix B of the

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Charter sets the percentage of the charter school’s ADMw which Defendant retains as

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operational expenses. For the 2011-2012 school year, Defendant is entitled to 15.7% of

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the charter school’s ADMw for grades K-8 and 5% of the charter school’s ADMw for

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grades 9-12. Hazelton Declaration, Exhibit 1, Charter, Appendix B, Section 3. Once

3—Relator’s Motion for Summary Judgment

Blair Bobier, Esq. POB 1233, Corvallis OR 97339 503.559.6176

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the operational expenses are deducted, the balance of these funds must be paid to

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Relator.

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The percentage and funds due to Relator include the remote small school funding at issue in this case. The funding which the District receives from the State on behalf of Relator includes funding for Relator’s status as a remote small elementary school. See

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ORS 327.013(1)(c)(A)(vi) and ORS 327.077. OAR 581-023-0106(3)(d) and (e) 7 8 9 10 11

describe how the ADMw of a charter school includes the remote small school funding: (3) The ADMw for a charter school includes: (d) An additional weight for a remote small elementary school correction as calculated pursuant to ORS 327.077 if the charter school qualifies as a remote small elementary school under ORS 327.077. (e) An additional weight for a small high school correction as calculated pursuant to ORS 327.077 if the charter school qualifies as a small high school under ORS 327.077.

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OAR 581-023-0106(3)(d); OAR 581-023-0106(3)(e). 13 14 15 16 17 18 19 20 21 22 23

OAR 581-023-0106(5) then makes crystal clear that all such funds are based on the charter school’s ADMw and are to be passed on to the charter school—minus, of course, only the percentage which the sponsoring District may deduct for operational expenses as determined by the charter: “(5) Pursuant to ORS 338.155(1)(b)(C) all funds to be distributed to charter schools based on charter schools’ ADMw will first be distributed to the district where the charter school is located. The funds will then be distributed to the charter schools pursuant to ORS 338.155(2), (3) or (7). OAR 581-023-0106(5) (emphasis added). The District must distribute all funds to the charter school within ten days of receiving the funds from the State school fund. ORS 338.155(8). The contract between the parties specifically provides that “KVCS is subject to

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the rules adopted by the Oregon Department of Education relative to Charter Schools.” 25 26

Hazelton Declaration, Exhibit 1, Charter, 1(d)(5). Though there shouldn’t be any question that the parties are subject to the rules promulgated by the Oregon 4—Relator’s Motion for Summary Judgment

Blair Bobier, Esq. POB 1233, Corvallis OR 97339 503.559.6176

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Department of Education (ODE), this charter provision confirms it. And the ODE rules

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clearly provide that Relator must be paid based on Relator’s status as a remote small

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school. Furthermore, if a conflict exists in interpreting different sources of law

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concerning the Charter, priority is given to state law and administrative rules over the Charter. Hazelton Declaration, Exhibit 1, Charter, 2(b). Though no conflict exists, even

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if one did, the funding calculation would be determined by state law and the applicable 7 8 9 10

Oregon Administrative Rules promulgated by ODE. Therefore, any way you cut it, the funding for Relator is determined by OAR 581-023-0106(3)(d) and OAR 581-023-0106(5)—which explicitly provides for the payment of remote small

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school funding from Defendant to Relator. In fact, each component of law and contract

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which references payment from the School District to the Charter School makes clear

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that the Charter School’s ADMw is the relevant consideration in determining payment

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and that the ADMw includes the remote small school funding at issue in this Mandamus

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action.

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THE PARTIES AGREE ON THE FACTS OF THE CASE There is no is no genuine issue as to any material fact: Relator and Defendant

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agree that KVCS is a remote small school and qualifies for the remote small elementary 19

school correction. The superintendent of the Philomath School District, Dan Forbess, 20 21 22 23 24

stated in an email message on April 27, 2012, to Mark Hazelton, the Director of KVCS, that KVCS “meets the definition of a remote school.” Declaration of Mark Hazelton, Exhibit 4. Similarly, there is no dispute that Defendant has received increased funds from the

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State School Fund based on Relator’s classification as a remote small school and that

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Defendant has not paid, and refuses to pay, Relator all funds owed to Relator based on

5—Relator’s Motion for Summary Judgment

Blair Bobier, Esq. POB 1233, Corvallis OR 97339 503.559.6176

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the remote small school correction. Each and every month, from August 2011 to May 2012, the Philomath School District received State School Fund moneys intended for KVCS. The Philomath School District is mandated to pay KVCS the full amount owed to KVCS, as determined by contract and state law, within 10 days of receipt of the funds. ORS 338.155(8). Each

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and every month, from August 2011 to May 2012, the Philomath School District 7 8 9 10

tendered only partial payment of State School Fund moneys to KVCS. Each and every month, from August 2011 to May 2012, the Philomath School District refused to pay KVCS the amount due KVCS, by state law and contract, based on the remote small

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school correction. The total sum which Defendant owes KVCS for the 2011-2012

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school year is the combined sum of the amount which Defendant unlawfully withheld

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each of these months, and which equals $179,341.38. Hazelton Declaration, Exhibit 2.

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In August 2011, Defendant failed to pay KVCS $46,855.23 within 10 days of when Defendant received the funds from the State School Fund on behalf of KVCS. In September 2011, Defendant failed to pay KVCS $26,201.48 within 10 days of when Defendant received the funds from the State School Fund on behalf of KVCS. In

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October 2011, Defendant failed to pay KVCS $11,098.93 within 10 days of when 19

Defendant received the funds from the State School Fund on behalf of KVCS. In 20 21 22

November 2011, Defendant failed to pay KVCS $11,632.17 within 10 days of when Defendant received the funds from the State School Fund on behalf of KVCS. In

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December 2011, Defendant failed to pay KVCS $11,632.16 within 10 days of when

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Defendant received the funds from the State School Fund on behalf of KVCS. In

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January 2012, Defendant failed to pay KVCS $11,632.17 within 10 days of when

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Defendant received the funds from the State School Fund on behalf of KVCS. In

6—Relator’s Motion for Summary Judgment

Blair Bobier, Esq. POB 1233, Corvallis OR 97339 503.559.6176

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February 2012, Defendant failed to pay KVCS $11,841.46 within 10 days of when

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Defendant received the funds from the State School Fund on behalf of KVCS. In March

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2012, Defendant failed to pay KVCS $23,473.91 within 10 days of when Defendant

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received the funds from the State School Fund on behalf of KVCS. In April 2012, Defendant failed to pay KVCS $13,078.10 within 10 days of when Defendant received

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the funds from the State School Fund on behalf of KVCS. In May 2012, Defendant 7 8 9 10 11

failed to pay KVCS $11,895.78 within 10 days of when Defendant received the funds from the State School Fund on behalf of KVCS. Defendant has not paid and, despite being requested to do so many times by Relator, refuses to pay the funds due to KVCS. Hazelton Declaration, Exhibit 2. Defendant has also failed to make any payment of remote small school funding

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to Relator for the 2012-2013 school year. Defendant was obligated by law to pay

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Relator $55,670.64 for the months of July through August 2012, within ten days of

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receiving such funds from the State, and has failed and refused to do so. Hazelton

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Declaration, Exhibit 3.

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Defendant does not dispute these facts. Rather, Defendant takes the position that “KVCS’ status as a remote school provides the District as a whole with additional

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funding.” Defendant’s Motion to Dismiss, Page 2, Lines 9-11. It is Defendant’s position 20 21 22

that “(n)othing in the law or the charter agreement requires” that Defendant pay Relator any of the funds due to Relator’s status as a remote small school. Id. Defendant’s position completely ignores the clear dictates of

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OAR 581-023-0106(3)(d), OAR 581-023-0106(5), ORS 338.155(2), and the Charter

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agreement between the parties.

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7—Relator’s Motion for Summary Judgment

Blair Bobier, Esq. POB 1233, Corvallis OR 97339 503.559.6176

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CONCLUSION

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There are no material facts in dispute. The sole source of dispute in this matter

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is whether the law commands Defendant to pay Relator the contractually agreed upon

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percentage of remote small elementary school funding. This is a matter of law. The law clearly supports Relator’s position. As there are no issues of material facts, and the law clearly supports Relator’s position, this Court should grant Relator’s Motion for

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Summary Judgment. Dated: September 25, 2012

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Respectfully submitted,

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_________________________ Blair Bobier, OSB #88160 Attorney for Relator

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Trial Attorney: BLAIR BOBIER PO Box 1233 Corvallis, OR 97339 Tel: 503.559.6176 [email protected]

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8—Relator’s Motion for Summary Judgment

Blair Bobier, Esq. POB 1233, Corvallis OR 97339 503.559.6176

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CERTIFICATE OF SERVICE

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I hereby certify that I served certified true copies of the foregoing Motion for

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Summary Judgment along with its supporting Declaration and four Exhibits, upon the Attorney for the Defendant, by mailing a true and correct copy by U.S. mail, first class, postage pre-paid, to the individual and address below; as well as by electronic mail to [email protected], on the 25th day of September, 2012.

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Morgan Smith, Attorney P.O. Box 1068 Salem, OR 97308

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____________________________ Blair Bobier, OSB #88160 Attorney for Relator

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9—Relator’s Motion for Summary Judgment

Blair Bobier, Esq. POB 1233, Corvallis OR 97339 503.559.6176