Chamber of Commerce, MoveOn Back Connecticut Democrat Mary Glassman Over “Teacher of the Year” Jahana Hayes

Originally published in The Intercept with Ryan Grim on August 14.
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A bizarre coalition of groups has come together to rally behind Mary Glassman against Jahana Hayes in a Tuesday Democratic primary election in Connecticut, where racial politics have bubbled just beneath the surface.

Glassman is a longtime local politician who twice ran unsuccessfully for lieutenant governor. Connecticut is a blue state dominated by corporations, and Glassman this week won the rare endorsement of the U.S. Chamber of Commerce, a Republican-aligned voice for big business. The chamber almost never endorses Democrats and rarely intervenes in a Democratic primary.

Joining the chamber is both MoveOn and the local chapter of Our Revolution, the group formed in the wake of Sen. Bernie Sanders’s 2016 campaign for president. The three disparate groups have never lined up together on a campaign, but they are doing so on the opposite side of Hayes, a black woman who grew up in a local housing project and captured national attention when she was named 2016 “Teacher of the Year.”

MoveOn bases its endorsements on a vote by local members. To endorse, at least two-thirds of the members must support a particular candidate in a two-way race — so the endorsement suggests that there is significant support in the 5th District for Glassman.

“We made a decision to hold a member endorsement vote in this race, and our members voted to endorse Glassman,” Rahna Epting, managing director of MoveOn’s Election Program, told The Intercept. “Many of our members who casted votes also expressed substantial enthusiasm for Hayes. We always honor the results of official endorsement votes of the MoveOn membership.”

The endorsement by the central Connecticut branch of Our Revolutionis highly unusual, as Our Revolution claims to back progressive candidates who — unlike Glassman — proudly embrace the policy platform Sanders ran on. (Sanders won more votes in Connecticut’s 5th District in the 2016 primary, even though Hillary Clinton won the state overall in the election.) The group, however, has a rather anarchic approach to the establishment and activity of local chapters. On the local’s page, it says that it supports candidates who advocate for “Medicare for All,” the only specific policy cited.

Diane May, a spokesperson for the national Our Revolution, said, “Our local groups are free to endorse the candidates they feel best represent their progressive values. As this was a local endorsement, you’ll have to speak with them as to why they endorsed the way they did.”

Bobby Berriault, of the local Our Revolution chapter, told The Intercept that “Hayes and Glassman are very similar: Both support universal health care, both support a $15-an-hour minimum wage.” Glassman’s campaign shared her backing of those progressive positions directly with the 100-member strong chapter, Berriault said.

Glassman’s support for “Medicare for All” does not appear anywhere on her campaign website, which instead talks about defending the Affordable Care Act and working to lower prescription drug costs. This lines up with talking points suggested by the Democratic Congressional Campaign Committee, which has pushed candidates not to embrace single-payer health care. The minimum wage plank is similarly missing from Glassman’s website; the campaign didn’t immediately respond to a request for comment. Meanwhile, Hayes told The Intercept that she supports single-payer health care; a $15 minimum wage; and free college, another policy that Our Revolution typically champions. (Her campaign website lists only her support for single payer.)

Berriault said that he himself supports Glassman, but he did not vote on the endorsement motion. (Glassman recently donated $100 to a Berriault GoFundMe to cover surgery expenses.) He said that the MoveOn endorsement confirmed Glassman’s progressive bona fides, adding that Our Revolution members were concerned that much of Hayes’s fundraising had come from outside the district. His support, however, is not unwavering. “I am a little troubled that the Chamber of Commerce endorsed her,”  he said.

Glassman jumped into the race in April when Rep. Elizabeth Esty stepped down amid reports that she allowed her chief of staff to stay on months after learning he’d been accused of harassing a female staffer. Glassman quickly raised more than $100,000 and hoped to cruise to an easy victory.

But her sailing was less smooth than she expected. Less than two weeks before the May 14 endorsement convention, Hayes — encouraged by Sen. Chris Murphy — jumped into the race. At the nominating convention for Connecticut’s 5th District, as The Intercept previously reported, it was Hayes who emerged as the initial winner. But convention chair Tom McDonough kept the vote-switching period open long enough for enough delegates to switch and swing it narrowly back toward Glassman.

Vote-switching itself is not uncommon, but the prolonged process was unusual. Chris D’Orso, a convention delegate who serves on the Board of Aldermen for Waterbury and backed Hayes, told The Intercept at the time that he’d never seen anything like it in his more than 20 years of deep involvement in local Connecticut politics.

The Connecticut NAACP called for a special hearing into potential vote tampering to ensure that civil rights were not violated; the Democratic State Central Committee later found that two votes had been improperly recorded in Glassman’s favor, but the finding did not impact the actual endorsement.

Hayes didn’t drop out though, hoping to become the first black candidate for the House, Senate, or governor to earn the nomination of her state party. In Connecticut, any candidate who wins at least 15 percent of the delegates at the endorsing convention earns a spot on the primary ballot. As a result of the endorsement, though, Glassman’s name is featured at the top of the ballot and marked with a special designation to signal that she’s the party-backed candidate.

If Hayes wins the primary, she could be the only black leader serving in the U.S. House or Senate from all of New England. (Ayanna Pressley, the first black woman to serve on Boston’s City Council, is also gunning for the Democratic nomination in Massachusetts 7th Congressional District next month.)

One month after the convention, Sen. Kamala Harris, D-Calif., widely assumed to be running for president in 2020, endorsed HayesLocal teacher unions and the Connecticut Working Families Party did the same. Hayes’s fundraising also surpassed expectations. By the end of July, Hayes had raised $461,000, compared to Glassman’s $457,000, according to Federal Election Commission filings. Glassman’s campaign points out that she raised 85 percent of the funds from voters in the district, while more than half of Hayes’s funds in her latest filing came from out of state.

In July, Murphy introduced Hayes to a slew of influential donors and veteran political staffers. While Murphy has not issued a formal endorsement, he told the local news site CT Post that he encouraged Hayes to run in part “because we don’t have a single nonwhite member of the New England congressional delegation,” and “we are really missing something.” He described Hayes as “a wonderful contrast” to Glassman.

Glassman is running on experience, touting her eight terms of public service as Simsbury’s first selectman, a mayor-like position for a wealthy enclave outside Hartford. Hayes is running as a fresh voice, outside the political establishment.

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“It Was All True”: Minnesota Attorney General’s Former Deputy Speaks Out About Participation In Political Work

Originally published in The Intercept on August 9, 2018.
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On Monday The Intercept reported that Minnesota Attorney General Lori Swanson relied on her official government staff for political work, sourced largely to unnamed employees. In the 48 hours after the story’s publication, more than a dozen individuals, including seven more former employees, contacted The Intercept and shared stories of being asked to volunteer politically that corroborated our report. Multiple sources named key Swanson deputies engaged in political activity in the attorney general’s office, repeating the names of staffers who’d previously been identified to The Intercept. One name that was repeatedly mentioned was D’Andre Norman, someone said to be instrumental in pressuring staffers to do Swanson’s political bidding.

Norman left the office in 2014 and is listed in state records as a mid-level employee, but sources claimed he was a close Swanson ally for years.

The Intercept contacted Norman and asked him about his political involvement with Swanson. He agreed to tell his story. He said that while he felt loyal to many of his co-workers, his time at the attorney general’s office weighed heavily on his conscience. He said he was also fearful that, in any case, his name would soon be exposed by reporters or investigators, at which point Swanson’s allies might attempt to pin all the wrongdoing on him.

“It was all true, unfortunately,” said Norman of The Intercept’s report. “Nothing in there was not right and correct.”

The three-term attorney general is now a leading Democratic contender for governor ahead of an August 14 primary election.

Swanson’s campaign denied the accuracy of our first report. On Tuesday, the campaign asserted in a statement that there “is no political activity undertaken by any member of the attorney general’s office while ‘on the clock’ for the government, period.” Employees “of the attorney general’s office are paid and promoted based solely on their merit and work responsibilities, period,” the statement continued. The office also claimed that The Intercept, through its parent company, First Look Media Works, could be tied to two companies Swanson prosecuted years before the company’s founding, suggesting that the story was “a political attempt to settle scores.”

In addition to claims from current and former employees that Swanson oversees an office in which employees do campaign work — like scheduling campaign events and stuffing envelopes — during the business day, we reported Monday that seven individuals who were identified as Swanson supporters received notably large raises, according to public records. We also reported that Swanson’s attorney general committee, which has spent $660,000 since the beginning of 2014, reports zero dollars for payroll or employee expense. Her current gubernatorial campaign similarly reports no staff expenses.

It is not illegal for politicians to ask employees to get involved in their campaigns, though Minnesota law bars the use of “official authority or influence” to compel political participation.

State Rep. Sarah Anderson, the Republican chair of a House committee that oversees the attorney general’s office, said on Tuesday she “is considering holding a hearing on the culture of the attorney general’s office next session, even if Swanson is leaving,” Minnesota Public Radio reported. On Twitter, she said The Intercept’s investigation into Swanson is “alarming.”

NORMAN, A 41-YEAR-OLD resident of Minneapolisworked at the attorney general’s office from 2006 to 2014. Electronically available state payroll records only go as far back as 2011, and they list him as an employee from that year through 2014.

He said he was fired in 2014 after facing a car insurance fraud claim from the state commerce department, though he was allowed to receive unemployment benefits. The charges were eventually dismissed and expunged shortly after he left the attorney general’s office, but he said the episode had attracted unwanted legal attention from state investigators, and Swanson and former Attorney General Mike Hatch were quick to push him out.

Benjamin Wogsland, a spokesperson for the attorney general, declined to answer a series of questions The Intercept asked about Norman’s work, role, and termination. “I must be sensitive to the office’s personnel policies and state laws as it relates to public comments involving personnel matters,” he said.

Before working for Swanson, Norman was involved in local politics. He worked for several years at the Association of Community Organizations for Reform Now, the now defunct community organizing group, followed by a stint with the Democratic-Farmer-Labor Party, as the Democratic Party is known in Minnesota, that began in early 2006. At the party’s statewide convention that year, he was the person selected to formally nominate Hatch for the party’s gubernatorial endorsement. Later that year, when Hatch lost that race by less than 1 percentage point, he invited Norman to come join him back at the Minnesota attorney general’s office, where Swanson was beginning her first term.

“He personally asked me to come work at the office with him and Lori because they could use my political instincts,” Norman told The Intercept.

When he was hired, Norman said, it was his understanding that Hatch and Swanson expected his job would be primarily political, even though he had job titles like “consumer analyst” and “mediator” in the consumer services division.

Norman described one of his actual roles in the office as being a “recruiter.” He said this meant his job was to encourage employees to staff Swanson’s frequent political events, and he was widely understood to be one of Swanson’s most trusted allies in the office. Multiple sources who spoke to The Intercept confirmed his close association with Swanson. This included Linda McEwen, Swanson’s former executive assistant, who worked in the office from 2007 to 2009, when she was fired. McEwen said that during her tenure, Norman would accompany Swanson to many political events she scheduled on Swanson’s calendar, and he’d help recruit employees to attend other campaign functions.

Hatch did not return The Intercept’s request for comment.

Norman emphasized that the work Swanson wanted done required dozens of employees over the course of a year.

“Since 2007, Swanson wanted to get ready to run for governor,” he said. But in order to do so, according to Norman, Swanson believed she needed a constant presence “at every political convention.” This included conventions for the 67 Minnesota Senate districts, which were usually held on weekends.

Norman said Swanson wanted a handful of employees at every convention, often with three to four different conventions each weekend. “It was never anyone outside the office who did the work, so you can imagine how many people it was,” he said, adding that to induce participation, he and his fellow deputies would say Lori would one day run for governor, likely win, “and just imagine where your career could go.”

Sometimes, Norman said, political events that began during the late afternoon on a weekday would necessitate shuffling volunteers out of the office several hours before the close of business.  

“Any time Lori needed someone to do any staffing at her events, or meet people at conventions or fundraisers, or anything that was all politically related, she relied on me,” he said. “Many times she called me personally on my cell phone. If she needed 30 to 40 people, I got it done.”

To get it done, Norman went after staff and attorneys in almost every department, though most recruits were young people working in the consumer services division. Norman said he approached staff members individually, and he asked division supervisors for volunteer suggestions. “Every time I approached anyone, especially the people who were charged with leading different divisions, when I came to talk to them, they always knew — or assumed — I was speaking on Lori’s behalf,” he said. “I was not questioned.”

Norman said he also recruited staffers out of the Medicaid fraud division, where heightened caution was required. “We had to be really careful, because half the budget came from the federal government,” he said, noting that avoiding the scrutiny of the federal inspector general was a serious concern. Two additional sources who previously worked in the Medicaid division also said that volunteers were recruited from there. Those sources asked to remain anonymous for fear of retribution. Swanson’s office did not respond to a question about whether volunteers were ever recruited from that unit for Swanson’s political events.

Consumer analysts, mediators, and attorneys were the primary targets, Norman said. Unionized staff, like secretaries, were off-limits.

Discretion was key. Norman described covert exchanges of campaign literature in the downtown parking lot, away from the eyes of others in the office, and said he was personally given a lock for his office door, something most employees did not have. “We’d recruit only certain people and we would tell them to not talk to other staffers about it,” Norman explained. “We’d let them know that Lori trusted them. It was a lot of people’s first job out of college, and we took advantage of that.”

A STAFFER WHO fits that profile is Thomas Olsen, who came forwardafter The Intercept’s story published on Monday. Olsen, who started as an analyst in the consumer services division immediately after graduating college in 2014, recalled the experience of being asked to volunteer on campaign events by an employee other than Norman, who still works at the attorney general’s office.

“It was just kind of uncomfortable, but it was also confusing because for many of us it’s our first professional job,” said Olsen, explaining it was hard to tell if these were unusual requests, given that they were still ostensibly voluntary. He said he once, during his first year, attended an after-work fundraising event at Mancini’s, a St. Paul steakhouse. “I was given very little instruction of what to do, and when I arrived, I basically just saw all my co-workers,” he told The Intercept. “I wasn’t working behind a booth or anything; it was clear I was just there to be a body.”

“It’s not like if you did campaign work, you’d automatically be promoted,” he added. “But they were so obviously correlated to everyone who worked there.”

Olsen left in April 2017 to work on a mayoral campaign. He now works for a grassroots political action committee that is not connected to specific candidates or parties.

LAWYERS AT THE attorney general’s office tried in 2008 to form a union, but were shut down by Swanson, who said staff lawyers were not covered by the Public Employee Labor Relations Act. At the time, the local press reported on staffers who said they were fired for their union activities.

Over the course of The Intercept’s reporting, several employees identified Norman as someone who assisted Swanson during the union push. When asked by The Intercept, Norman affirmed his role in helping his boss identify union supporters during the ultimately unsuccessful organizing effort. “Lori was against them and saw them as enemies, and I helped find them for her,” he said. “The saying was, ‘If they were close to retirement, then just leave them alone.’” Sometimes, Norman said, he and other Swanson allies would take staffers out to lunch to discourage them from unionization. Another time, he recalls going into employee offices at night and looking through their caller IDs to see who pro-union workers communicated with. “She asked us to do that, I was instructed with that,” he said.

When asked if Swanson ever gave this instruction to Norman and any other individual, Wogsland responded, “To my knowledge, the office telephones did not maintain call logs in 2007.”

Looking back, Norman feels terrible. It was a lot of “careers that got destroyed,” he said, referring to those who were fired for their union support.

Norman was clear that his proximity to Swanson and his political role produced significant professional benefits. “I got an office, I had a secretary,” he said, benefits that mid-level employees typically did not get. “I was reporting personally to Swanson over my supposed immediate supervisors.”

He said that his official workplace duties were mostly completed by his secretary. “As long as the critical stuff was done, it was just a free-for-all,” he said. He recalled receiving other bonuses: “I got sports tickets, Viking games. … I got advances numerous times in cash, anything I wanted.” When it came to vacation days or sick days, Norman said as a member of Swanson’s inner circle, he would sometimes take so-called under-the-table hours, where employees would take time off but the record would show they had been in the office.

Wogsland, the attorney general spokesperson, said his office “does not issue ‘cash advances’ to employees or purchase sports merchandise or tickets for employees or anyone else.”

After being promoted from a consumer analyst to a mediator in the downtown office, Norman was later promoted in 2013 to work at the executive suite office at the state Capitol. About a dozen other attorney general employees worked in that office, which carried reputational and financial prestige. “I think I was only put there so they could give me more money, and I would continue doing the same stuff,” he said. But this promotion moved him away from the downtown office staffers he needed to be actually recruiting. “So then I had two offices: one downtown, one at the capitol,” he said. Norman’s state payroll records from 2011 to 2014 show his salary increased from $40,900 to $62,300 over that span — a 50 percent jump — and that in 2013 he moved up two pay grades in state data.

While Norman saw his career flourish, he said, others were slowed professionally because they refused to engage in politics or their favored politicians were deemed unacceptable. “Lori wanted to know who did not want to help, who was not trustful. And she listened [to what we told her], and those people did not go far. They were always the last to get promoted out of the phone room.”

He said he attended the majority of Swanson’s fundraisers during his time working at the attorney general’s office. Norman said he didn’t explicitly ask people to donate at the fundraisers, but he would tell employees not to complain about the car mileage and occasional hotel expenses they incurred to attend Swanson’s political functions.

When it came to vetting employees politically, Norman said he and other trusted deputies would check their social media accounts for mentions of politicians that Swanson didn’t like, such as state Rep. Steve Simon, who led the call for legislative audits of Swanson’s office. In 2008, Simon presented allegations  to the Minnesota Legislative Auditor about the politicization of legal decision-making under Swanson and Hatch. (Simon, now Minnesota’s secretary of state, served as a representative from 2004 until 2013.)

“A red flag would be if someone would be a Steve Simon supporter,” Norman said. Sometimes the penalty was severe, he added: “We would fire people who said they’re ‘not political’ or supported the wrong people.”

Norman identified several employees who had been unwilling to volunteer. Salary records for those staffers show stagnant or even declining total compensation, corroborating this account. One employee, he said, had “been stuck answering the phones for 10 years” because they refused to participate in politics.

Even attending the wrong college could be a problem, according to Norman. In 2008, after 27-year-old Harvard law school graduate Amy Lawler voiced ethical concerns about Swanson’s office to the media, Norman said top Swanson deputies made a decision to avoid hiring Harvard graduates again, “because they didn’t need Lori.” The same decision was made about graduates of Macalester, a St. Paul college with a reputation for progressive politics. Norman said, “For whatever reason, those would always be the kids who say ‘Man, this is really not right.’”

THIS YEAR MARKS Swanson’s 11th year as attorney general, and she is one of the most powerful figures in the state’s Democratic establishment. How is it that the office culture she’s presided over has remained secret for so long?

“That’s a really good question,” Norman said, noting that speaking out “makes a lot of people scared.” He said that after people had seen several attempts to speak out fail spectacularly in 2008, they’d begun to believe Swanson was untouchable. Following Simon’s calls for closer scrutiny of the attorney general’s office, the legislative auditor considered launching a formal investigation, but ultimately decided not to do so after conducting a narrow, preliminary assessment.  “After personally seeing Lori get past a lot of threats of investigations and audits,” Norman said he started to assume that anyone who spoke up would fail to see Swanson face any consequences, and would themselves get ruined in the process. “It was kind of crazy, because they were all telling the truth,” he said of those who spoke to the media about ethical concernsand union busting a decade ago.

Swanson’s campaign did not respond to specific questions about attempts to quash the union effort, but her campaign spokesperson Ruth Stanoch previously told The Intercept that “the law simply does not allow for [unions] and as the chief legal officer of the state, the Attorney General must follow the law.” In 2008, in response to ethical concerns raised by some attorneys, Swanson’s then-spokesperson said it is impossible for an employer to respond to anonymous attacks from former employees or those who may be disgruntled.

The circumstances that led to Norman’s 2014 departure from the office led to a painful realization that his political benefactors were not interested in having his back, he said.

“They always told me I was family, that they would do anything for me,” he said. “It made me feel like the top of the world at the time, but then when I was having some personal troubles, they just wanted to wash their hands of me.”

Norman said Hatch wrote him a resignation letter that he refused to sign. The attorney general’s office ended up firing him, though with unemployment benefits. Norman said his close ties with the attorney general made this process complicated, and Hatch also helped get him his next job at Service Employees International Union. “Family is family,” Norman said.

But immediately after Norman left the attorney general’s office, he said, he slid into a deep depression. “The job, it was my life, I put in everything I had and was totally committed for almost a decade,” he said. “I’ve had to go through a lot of therapy, because I knew what I did was wrong but it was also really hard to leave and felt good they trusted me with so much.” Norman said he was from a broken home, and this was the first time in his life he felt like he had a family. But he said he grew to realize that his employers had taken advantage of that.

He expressed powerful guilt. “It’s on my conscience — I assisted with helping [Swanson and Hatch]do things to people who wanted to speak up, and wanted to speak the truth. Knowing that they were good people, that’s a lot. You’re talking almost nine years of me seeing these things daily, weekly.”

He thought that speaking out would also give him a chance to reach out to the people he said he hurt. He told The Intercept he regrets taking part, and hopes he can one day earn forgiveness.

It was his experience of being “thrown under the bus” in 2014, Norman said, that made him realize he needed to speak out now. After reading Swanson’s recent denials in the press, he felt more sure than ever that Swanson and Hatch would not have his back if and when his name publicly surfaced. The fast-approaching gubernatorial primary was also a factor in his coming forward.

Norman is under no illusions about whether speaking out could invite the wrath of his former political mentors, but he says he’s committed to the public learning the truth. “I am willing to speak under oath or take a lie detector test,” he said. “And I guarantee if others were forced to speak under oath, the truth would come out immediately.”

Minnesota Attorney General — Now Democratic Frontrunner for Governor — Relied on Government Employees for Campaign Work, They say

Originally published in The Intercept on August 6, 2018.
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Lori Swanson, Minnesota’s three-term attorney general and current candidate for governor, has presided over an office culture in which professional success is linked to the willingness of employees to participate in Swanson’s campaign work, eight former and current employees of the attorney general’s office told The Intercept.

Swanson, a moderate Democrat who was first elected in 2007, has kept a remarkably low profile throughout her 11 years in office, largely avoiding crowds and close media coverage. Just last month, Minnesota Public Radio described her as “an atypically private politician who runs a tightly-controlled office and makes few public appearances.” Unlike nearly all other politicians across the country, she maintains no personal or professional presence on Twitter or Facebook.

None of this is by accident, according to sources familiar with Swanson. Lawyers and other employees who have worked for her describe a highly politicized office in which burnishing Swanson’s image is a primary focus.

The lawyers and other staffers in the attorney general’s office interviewed for this article said they felt pressured to carry out tasks like stuffing envelopes for the benefit of the campaign and scheduling campaign events, sometimes during the work day. They said they felt their promotions and pay raises were based partly on participation in political campaigns. Attorneys reported foregoing basic legal work to instead correspond with constituents and defend the office’s and Swanson’s reputation in various public relations campaigns — work they said they felt was political. Multiple sources reported that these office dynamics began as early as Swanson’s first year in office and continued through this year.

It is not illegal for politicians to invite their employees to get involved with their campaigns. However, Minnesota law bars the use of “official authority or influence” to compel employees to engage in political activity.

Ruth Stanoch, a spokesperson for Swanson’s campaign, said the allegations are “categorically false” and that additional questions should be directed to the attorney general’s office. A spokesperson from that office, Benjamin Wogsland, told The Intercept that anyone who volunteers on a political campaign must do so own their own personal time, and that “the office does not consider an employee’s participation in the political process or lack thereof in determining raises and promotions.” He declined to answer specific follow-up questions unless The Intercept would name the employees we interviewed.

Former staff and legal observers are also calling attention to other elements of Swanson’s record. These include what was widely considered an aggressive union busting effort she conducted early in her first term. Also of note, they say, is a history of touting high-profile lawsuits against corporate defendants and the Trump administration — and then settling or exiting them quietly after the press had moved on.

Democrats are expected to maintain control of the governor’s mansion in the November election, and a recent poll showed Swanson with a narrow lead over her two more progressive primary opponents. But with the August 14 primary fast approaching, those who worked with her say they want Democratic voters to know more about the candidate for whom they’re being asked to cast a ballot.

SWANSON’S GUBERNATORIAL CAMPAIGN has prompted former and current employees to reveal what they say is political activity within her office. Most who spoke to The Intercept did so on the condition of anonymity, fearing retaliation by one of the most powerful Democrats in the state. They told The Intercept that, throughout Swanson’s tenure, they and other employees scheduled campaign events and stuffed envelopes while working in the attorney general’s office. They also said employees staffed campaign events during the business day and on the weekends. According to a source with detailed firsthand knowledge of these practices, not all employees were asked to participate, and those who did engage in campaign work were typically shuttled from the attorney general’s large office in downtown St. Paul to a much smaller executive suite at the state Capitol, to maintain discretion. Multiple sources said political work also took place in the downtown office, in the consumer services division, and in the Medicaid fraud unit, among other places. Sometimes, according to another source who left the downtown office this year, attorneys were asked to spend full days doing public relations work, researching information to rebut any negative news articles about the attorney general.

The current and former staffers described how Swanson’s inner circle would ask workers, including attorneys, to conduct political work for the attorney general. According to these sources, Swanson’s revolving network of allies included individuals from different levels of her office, with varying job titles, responsibilities, and qualifications. To induce participation, they emphasized that Swanson was a rising political star who would one day be governor, and therefore in control of thousands of appointments that she could give to her supporters. Sources described these supporters making these pitches one-on-one, often behind closed doors.

Five employees told The Intercept that they believed that advancement in the attorney general’s office was partly tied to participation in political events on Swanson’s behalf, though she never explicitly stated this. According to these accounts, supporting Swanson politically yielded professional rewards, including promotions and pay raises. One source described other benefits, such as tickets to sporting events. Two sources told The Intercept they were aware of political activity in the office but declined to participate, including, in one instance, after receiving a direct overture. They said they felt no pressure but speculated that this choice may have affected future promotions.

Publicly available state payroll databases showed seven employees identified to The Intercept as politically tied to Swanson receiving high salaries, and, sometimes, substantial raises in short periods. The salary of one employee described by three sources as an important Swanson supporter increased 127 percent in a recent six-year period. Another, who the Swanson campaign confirmed volunteered to help produce campaign materials, received a 130 percent salary increase in three years. Sources made clear that these seven individuals did not represent a complete list of Swanson’s political allies.

When asked whether those seven staffers’ compensation had any relation to their political activities, Wogsland, the office spokesperson, said they were all “highly-capable and talented individuals and valued members of our staff. Their pay raises and salaries are based exclusively on their talent, merit and responsibilities.” He added that their salaries were commensurate with those of their peers.

Since 2013, six of the seven identified staffers had made a combined 46 contributions to Swanson’s political campaigns, including $11,175 to her recently launched gubernatorial effort. State records show only one donation was made to any other Minnesota political campaign.

“If you wanted to be someone who went from being a low-level analyst answering phones to someone with an office and a secretary, you had to participate [in campaign events],” said one former staffer who worked closely with Swanson for years.

That employee’s account is substantially similar to the descriptions shared by current and former employees, most of them lawyers, who worked at the attorney general’s office during different periods, spanning from before Swanson’s first term in 2007 until today. Sources were reached independently of one another and worked in different divisions.

Linda McEwen, who worked at the state Capitol office as Swanson’s executive assistant from 2007 to 2009, said she directly witnessed employees engaged in political campaigning while there. McEwen was fired at the end of 2009, citing conflicts with Swanson over her mentor and former attorney general Mike Hatch’s role in office management. (She then went to work as the executive assistant to the chair of the Minnesota Democratic-Farmer-Labor Party, as the Democratic Party is known in Minnesota, for the next six years.) McEwen told The Intercept that, during her tenure, she knew which employees were participating in campaign work, and she saw firsthand those individuals receive disproportionate promotions and pay raises.

“They’d recruit folks out of the consumer division, who were generally young and wanting to build their careers and connections in politics,” said McEwen, referring to staffers Swanson used to mobilize others. “I worked closely with Swanson, I was right across the hall from her office, and I would schedule these people to accompany her to campaign events.” McEwen thinks she herself was hired because she volunteered on Hatch’s gubernatorial campaign.

“There’s no question” that raises and promotions were tied to whether staffers were willing to work on campaign events, McEwen added. “I saw it directly, including for senior staff who were given raises beyond what other people were given because they were politically supportive and politically involved in her campaign,” she told The Intercept.

McEwen is now retired, and she said she’s in a place in her life where she feels she can speak out publicly. She said, “I always told myself that if she ever ran for governor I would come forward.”

Swanson spends unusually little on campaign staff. Her attorney general campaign committee, which has spent $660,000 since the beginning of 2014, does not report a single dollar of payroll or employee expense. In the current gubernatorial race, among the 10 candidates with the highest campaign expenditures, staff expenses account for about 25 percent of all campaign spending — an average of about $107,000 per candidate. Every one of those candidates reported significant staff costs — all, that is, except for Swanson, who again reported $0 in payroll or employee expense. This was despite spending nearly $470,000 overall, more than all but three other candidates. 

Asked if Swanson maintains separate campaign staff, Stanoch, her campaign spokesperson, responded that her previous attorney general campaigns had been “volunteer-driven.” She did not address the present gubernatorial campaign.

After seeking comment from the attorney general’s office about the activities described above, The Intercept also received a communication from a private attorney representing unnamed clients at the office. He stated that “to the extent any of these individuals ever participated in the democratic process, whether in support of the Attorney General or any other candidate or cause, it was done on their time and not paid for by the government.” He noted that government employees are free to use “extracurricular time, vacation hours, lunch hours, etc.” as they wish. He added that his clients “are highly-credentialed, hard-working professionals” whose salaries are “commensurate with other similarly situated employees.” The Intercept requested an interview with the employees through their lawyer but did not receive a response prior to publication.

SWANSON’S CAMPAIGN FOR governor has been brief, but dramatic. Up until early June, she was running for re-election as attorney general. But after failing to win the DFL endorsement at a statewide convention, she abandoned that bid and jumped into the governor’s race at the last minute. (She lost the attorney general endorsement to a relatively unknown progressive candidate after opting not to address the delegates.) Two progressive candidates for governor emerged at that same convention: Erin Murphy, a former Minnesota House majority leader running on single-payer health care who scored the party’s formal endorsement; and U.S. Rep. Tim Walz, who is considered another strong liberal challenger. Swanson’s late entry into the race – one day before the state’s filing deadline for candidates and after the endorsement convention had passed — meant that party delegates never had a chance to weigh in on her candidacy.

But if she had hoped to sneak through the primary with little public scrutiny, those hopes were dashed when news broke in July that her running-mate, Rep. Rick Nolan, rehired a former legislative director to work on his 2016 re-election campaign just months after a group of female staffers reported him for routine sexual harassment. A subsequent leaked recording revealed Nolan discussing the “fragility” of white-collar women.

Following these revelations, progressive and feminist groups immediately called on Swanson to drop Nolan as her lieutenant governor, but she made no public comment for over 24 hours. This prompted Minnesota residents to take to Twitter to discuss other moments when their attorney general was missing in action, getting the hashtag #WhereIsLori to trend locally on the website.

Eventually, Swanson issued a statement on the matter, in which she condemned sexual harassment while reiterating her support for Nolan, who had apologized. Her campaign also suggested the accusations against Nolan were part of an effort to politically advance her gubernatorial opponents, sparking a fresh round of public outrage.

Swanson’s trajectory through Minnesota politics has been defined by unusually close ties to Mike Hatch, Minnesota’s previous two-term attorney general and three-time candidate for governor.

The two have been a team for decades. Swanson’s first job out of college in 1989 was working as an analyst for the state commerce department, where Hatch was commissioner. Impressed by her work, Hatch encouraged her to attend law school, and afterward hired her at his private law firm. In 1998, when Hatch launched his bid for attorney general, Swanson helped run his campaign. By 1999, 32-year-old Swanson was named deputy attorney general.

Hatch dramatically changed the culture of Minnesota’s attorney general’s office, which had formerly been one of the most highly regarded in the country, according to reports from people who worked there. Employees who worked under Hatch described him as a “foul-mouthed screamer and a bully” where any second-guessing of an order “could lead to a sudden loss of status with the management, an unwanted transfer, or being called into a meeting and offered a choice between resignation or dismissal.”

When Hatch left to run for governor in 2006, and Swanson ran to replace him as attorney general, staffers thought that breaking up the duo might lead to improvements within the office. But when Hatch lost, and Swanson won, Swanson’s first official move was to rehire her mentor back. She placed Hatch in charge of all complex litigation.

The continuation of the Hatch-Swanson relationship demoralized an office that was hoping for a fresh start. In her first 18 months, more than 35 percent of the rank-and-file attorneys quit or were fired. Swanson described the turnover as “healthy” and insisted morale was fine. She added that some attorneys who left “were not good fits” because they were not willing to work hard enough. 

THE CULTURE OF fear that permeated the attorney general’s office under Hatch and Swanson prompted attorneys to launch a union drive in the spring of 2007. Employees reached out to the American Federation of State, County and Municipal Employees Council 5, a public-sector union that had backed Swanson during her campaign. When a majority of assistant attorneys general signed union cards and asked to meet with Swanson, she declined, saying her staff lawyers were not covered under the Public Employee Labor Relations Act. In response to a question from The Intercept, Wogsland cited two Minnesota statutes as evidence that employees working for the state attorney general can’t unionize. But the staff attorneys and AFSCME disputed the attorney general’s legal conclusions, countering that nothing in the law barred Swanson from meeting with a union representing her employees.

What followed was described by insiders as an ugly chapter of union busting. In 2008, three assistant attorneys general sent Swanson a letter on behalf of the organizing committee asking her to recognize “the will of the staff to be represented by a labor union.” The organizing cohort also asked Swanson to work with them to amend the Public Employee Labor Relations Act so that it would “unambiguously include” the 135 attorneys and other at-will professional staff working in her office. They pointed to the unionized attorneys in Hennepin, Ramsey, and St. Louis counties, as well as the unionized city attorneys in Minneapolis and St. Paul. They got no response and published their letter online.

According to local reports at the time, Swanson then circulated a staff memo that called the online letter “a political swipe” and charged the authors with bringing “embarrassment to this Office.” Swanson later accused AFSCME of ginning up fake turmoil in order to advance its agenda, and insisted, again, that her staff’s morale was good. Employees later said they were asked to sign petitions pledging loyalty to Swanson and disavowing the union effort. One employee who spoke to The Intercept said they were asked to sign such a letter.

Some staffers said they were fired for their union activities, the local news outlet Pioneer Press reported in 2007. One pro-union attorney was fired less than a month after being given a raise and a letter of commendation. When the employee asked why she was being dismissed, she was told “it was office policy not to give a reason why,” and was escorted out.

Swanson denied these accusations at the time. In interviews with The Intercept, staff close to Swanson recalled the attorney general seeking out intel on those who supported the union effort and then later terminating them without explanation. Swanson’s campaign did not directly respond to the union-busting allegation, but said, “the law simply does not allow for [unions] and as the chief legal officer of the state, the Attorney General must follow the law.”

Hatch, Swanson’s mentor at the time, at the time issued a statement disavowing any sort of union at the attorney general’s office. “The state must speak with one voice on legal matters,” he said. “A union is simply not compatible with the constitutional and fiduciary relationship of trust and confidence owed to the Attorney General.” Hatch dismissed the employees who spoke to reporters as “disgruntled” and “mud throwers.”

The union effort died.

SWANSON IS RUNNING for governor as a “proven progressive,” but former employees at the attorney general’s office said she complained privately about the modern Democratic Party moving too far left.

Sources who worked close to Swanson described an aversion to public appearances or statements that might suggest a too-liberal political affiliation. This included, they say, a reluctance to appear at political events in Minneapolis or St. Paul, out of concern that it would associate her with the cities’ progressive urban politics. Despite Minnesota legalizing gay marriage in 2013, Swanson notably did not join the more than a dozen other Democratic attorneys general in signing briefs supporting marriage equality the following year, and she declined to explain why. (Swanson ultimately declared her office’s support in 2015, two months before the Supreme Court made it the law of the land.)

Instead, her political image is maintained through a heavy focus on constituent services. Former lawyers told The Intercept that they spent substantial amounts of time authoring personalized responses to non-pressing constituent questions and complaints, particularly from rural parts of the state. Some lawyers said they felt this was a frustrating political exercise that furthered Swanson’s political goals while diverting work hours from the office’s core legal duties. This has been a longstanding concern. In 2009, the Minnesota Monthly quoted a former assistant attorney general who quit under Swanson saying, “If a lawyer is working on a $200 million case and is being told to write letters to people complaining about coupons misrepresenting the price of melons at Cub Foods, you begin to wonder if their time is being used wisely.”

Wogsland, the office’s spokesperson, defended this work. “We are extremely proud that we make it a priority to help people in need,” he told The Intercept. “Doing so enhances, not diminishes, the legal work of the office. There have unfortunately been some attorneys employed in the office over the years who believed they were too important to interact with the public.”

That’s not to say that the office of the attorney general steers clear of political lawsuits. Indeed, in the age of Donald Trump, Democratic attorneys general have honed the legal playbook advanced by Republican attorneys general under Barack Obama, filing case after case challenging the Trump administration’s policies.

But while Swanson’s campaign has strongly touted the role she’s played in the resistance, some political observers say she has been unusually slow to sue the federal government compared to her Democratic counterparts around the country. Since January 2017, Paul Nolette, a Marquette University political scientist, has tracked the number of lawsuits filed by Democratic attorneys general against the administration. With 15 such suits, “Swanson is near the bottom of the list, well behind small offices like Vermont and D.C.” which have filed 29 and 27 cases, respectively, Nolette told The Intercept. She “has also largely deferred taking the lead on multistate litigation,” Nolette added, noting that she has the power and legal authority to do so. “She has taken a different path than her predecessor a few years ago, Skip Humphrey, who was one of the most active [attorneys general] nationally during his time in office,” he said.

Minnesota legal observers have also criticized Swanson for filing big lawsuits, including against the Trump administration, that generate favorable press coverage, but that quickly flounder or settle once reporters have moved on.

“There was a relentless focus on media attention, getting the headline,” said Prentiss Cox, a longtime employee in the Minnesota attorney general’s office who now works as a consumer law professor at the University of Minnesota Law School. Cox worked under Swanson when she was deputy attorney general, eventually leaving the office to teach law. After her 2006 election, she picked him to head an influential predatory lending task force. “If it wasn’t a headline, it wasn’t important,” he said.

Locals point to the Trump travel ban lawsuit brought by Washington state in February of last year, which Minnesota jumped quickly into as a plaintiff. Together, they won a temporary injunction, earning the state a slew of positive press. But six weeks later, Swanson quietly withdrew from the lawsuit.

“She’s never explained it,” said Kara Lynum, an immigration attorney in St. Paul. “We joined the Washington case and dropped out, and then she could have signed onto the Hawaii lawsuit which went to the Supreme Court, but she didn’t do that either,” Lynum added, referring to a second nationwide lawsuit against the travel ban.

Wogsland, the spokesperson for Swanson’s office, said “it made sense for Minnesota to monitor the litigation that moved forward (Hawaii) and be in a position to file an ‘as-applied’ challenge in the event that the order unconstitutionally applied to the people in the State of Minnesota.” He said Minnesota remains positioned to file such a challenge “if necessary and supported by the facts and the law.”  (In June, the Supreme Court ruled against Hawaii, upholding the ban.)

As she runs for governor, Swanson has been also pointing to consumer protection victories, including lawsuits she filed against an arbitration firmfor-profit colleges, and pharmaceutical companies.

One example her campaign has pointed to is Swanson’s 2012 lawsuit against Accretive Health, a voracious hospital debt collector that has since changed its name to R1 RCM.

After launching an investigation, Swanson’s office published a jaw-dropping six-volume report into Accretive’s practices in one Minnesota hospital system. The attorney general’s office prominently publicized the report online, an archived version of the website reveals. It detailed practices like patient bedside debt collection and mandatory meetings for emergency room personnel to learn that “their primary mission [was] the collection of money as opposed to the well-being of the patient.” The report described the hospitals coordinating with the firm to identify the easiest targets for increased collections. For example, one manager noted, “We need to get cracking on labor and delivery, there is a good chunk to be collected there.” Accretive ultimately negotiated a contract with the hospital system that delivered over $100 million annually to the collection firm.

Minnesota ultimately settled the case for $2.5 million and an agreementthat the company would delete Minnesota health data and not return to the state for up to six years, a moratorium that ends this November. An independent financial analyst noted at the time that the penalty had little financial impact on the company, which ended the quarter with a cash-balance of $214.5 million. The dramatic report, a copy of which has been independently obtained by The Intercept, is no longer available on the attorney general’s website, nor are other mentions of the case or its settlement. (Wogsland, the office spokesperson, said it’s been taken down because “the website contains information about current and recent cases and the Accretive matter is 6 years old.”)

Nevertheless, Swanson’s gubernatorial campaign has been presenting this Accretive episode as a reason to vote for her. Swanson referenced the Accretive investigation in her first TV ad, and Stanoch, the campaign spokesperson, told The Intercept that the attorney general “threw a Wall Street-owned corporation out of Minnesota for hounding patients for money while they were suffering medical emergencies in the hospital.”

Cox, the consumer law professor and former assistant attorney general, told The Intercept that he wouldn’t have spoken up about Swanson’s record four years ago, but that he feels compelled to do so in today’s political environment. He said, “It’s really important that we elect people who fundamentally care and support the public institutions that are under attack.”

Data Mining

Originally published in Washington City Paper on July 26, 2018.
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In the wake of a series of DC Public Schools scandals, Ward 3 Councilmember Mary Cheh came forward with an idea: an independent research collaborative that would conduct studies on the city’s public schools, including charters. This collaborative, outlined in draft legislation, would have an advisory board comprised of 16 education stakeholders who would drive the research agenda.

Cheh’s concept has precedent. Other cities, like Chicago, San Diego, and Houston, have similar research collaboratives, commonly referred to as “research practice partnerships” or RPPs. Local education advocates and Cheh’s colleagues on the Council have come out in strong support of her proposal.

But Cheh’s plan also has detractors, and many of them are the appointees of Mayor Muriel Bowser. At a six-hour public hearing held on July 13, several officials tapped by Bowser spoke out against this so-called “Education Research Collaborative.”

And at the same hearing, the public learned that the executive branch was exploring the launch of its own separate education research consortium with the Urban Institute, a national think tank located in D.C. The news sparked concerns that Bowser was seeking to undercut the Council’s push for independent oversight.

At the core of all this politicking: Who gets access to data about D.C.’s public schools, and how do they get to use it?

****

Cheh’s bill, introduced in April, has eight other co-sponsors, a Council supermajority which could override a potential veto from the mayor. The Council set aside $500,000 in its most recent budget for the auditor to “incubate” this pilot research consortium. (That funding becomes available in October, when fiscal year 2019 begins.) It would be launched initially in the Office of the DC Auditor, an agency outside of the executive branch. Supporters say that after a few years they would look for a new home—be it a local think tank, university, or its own independent agency.

The chair of the education committee, At-Large Councilmember David Grosso, has not yet taken a position on the bill, but in May he tried to steer the dedicated $500,000 to after-school programs instead. His effort failed 12-1.

The research collaborative was conceived of in response to the host of education scandals which emerged over the last year, including news that high school graduation rates were massively inflated and that the public schools chancellor knowingly violated a school choice policy he himself wrote. While local and national leaders have long looked to D.C.’s education reforms as a model for the nation, today many parents, community members, and even elected officials have voiced a lack of confidence in the gains reported by the school system, fearing information has become too politicized under mayoral control.

“I call the information that we get from our education agencies ‘PR,’” says At-Large Councilmember Robert White. “It can be very difficult to get hold of unbiased data.”

“Our hope is to get accurate, reliable, credible data, and then to use this data in a research partnership to understand whether the policies we are pursuing are really working,” says Cheh.

The idea has generated enthusiasm from local education activists who see it as a way to strengthen city schools. “From a parent and teacher perspective, everybody thinks this could be a huge benefit if it’s transparent, community-based, and has a real commitment to practitioners,” says Danica Petroshius, the co-vice president of the Capitol Hill Public Schools Parent Organization. “This is a chance to do something different, to really embrace a new way of doing business.”

Jeffrey Noel, who served as the data management director for D.C.’s state education agency—the Office of the State Superintendent of Education—between 2011 and 2015, also supports the proposed research collaborative.

“One of the things OSSE is known for in the state education community is having really focused on building its data validation and data quality tools … which means those things are really accurate, but it also means that the amount of data OSSE focuses on is really small,” says Noel. “There is a huge amount of raw data that exists that is just not being leveraged, that would help us to actually do better. But there’s a limit to how quickly OSSE can improve what it does internally, so some level of external effort would help.”

Despite this momentum, some significant hurdles remain for the Council’s idea.

At the July 13 hearing, current representatives from D.C.’s three education agencies—District of Columbia Public Schools (DCPS), the DC Public Charter School Board (PCSB), and OSSE—emphasized their support for conducting independent research, but testified that linking the collaborative to the auditor would conflate the lines between accountability and research, thereby crippling its chance for success.

Hanseul Kang, OSSE’s state superintendent, testified at the hearing that the auditor’s work should not be “commingled” with policy evaluation and research management “because these are two distinct functions” and doing so could “distract from the very real need for research that drives instructional practice.”

Ahnna Smith, the interim Deputy Mayor for Education, argued that housing the collaborative in the auditor’s office “would inherently politicize the research agenda” as the auditor is an arm of the Council. She also testified that the Council’s proposal “conflates the functions of audit and oversight with that of research” and would ultimately “prevent us from achieving the goals of gathering quality, accurate data” that could drive school improvement research.

Rick Cruz, the board chair of the DC Public Charter School Board echoed Kang and Smith’s concerns, testifying that while he supports both robust research and auditing, intertwining those two things could have unintended consequences. He also cautioned that schools “may be hesitant to work as cooperatively than they otherwise may be” if the research collaborative were housed in the auditor’s office, given “the inherent watchdog nature of the office.”

Supporters stressed that aside from an initial audit of all relevant data, the collaborative’s advisory board, not the auditor, would determine the research agenda. Plus, supporters say, it wouldn’t be permanently housed in the auditor’s office, but “incubated” there to get it off the ground. The primary goal, Cheh emphasized, is to ensure the effort launches in a trusted space that’s independent from the executive branch. She added that after two years, “we’ll be looking to see if there’s a better place to house it.”

D.C.’s auditor, Kathy Patterson, dismissed the criticism that housing it in her office would politicize it. The Council appointed Patterson to a six-year term in December 2014. “I don’t think it would be politicized at all,” she testified. “[My office] is seen as part of the legislative branch, but we also have a huge amount of independence.”

Michael Feuer, the dean of GW’s Graduate School of Education and Human Development testified that while he supports transitioning the collaborative to somewhere else after a while—including potentially his own university—starting it within the auditor’s office makes sense. “My hunch is placing the new consortium anywhere would provoke political and partisan concerns,” he said, adding that “if we wait until we’ve got the definitive evidence for a system that would be fool-proof and satisfying to everyone, we won’t get anywhere.”

Mary Levy, a longtime budget analyst for D.C. schools, is more blunt. “This idea is an infant in the cradle,” she tell City Paper. “And if you don’t put it in the auditor’s office it’s going to die in its cradle.”

***

Witnesses and councilmembers rarely uttered the word “subpoena” at the hearing, but the draft legislation endows the research consortium with subpoena power—undoubtedly one of the more contentious features of the proposal.

Josh Boots, the executive director of EmpowerK12, an education data support nonprofit, was one of the few witnesses to directly address the issue. “We are extremely concerned about the prospects of quality research … when that research is being conducted by an entity with the threat of subpoena power,” Boots said. “Will the [local education agency] leaders, principals, and teachers have the trust that is required to share candid quantitative and qualitative data under this scenario? We’re not sure.”

Supporters say that in an ideal world such legal authority would not be included, but that it’s needed in a city where schools and advocates have long fought against disclosing certain types of information.

“You have the subpoena as a backstop,” Councilmember Cheh tells City Paper. “When I was looking into the Department of General Services, for example, the mayor didn’t want me to launch a formal investigation with subpoena power, but then I could say, ‘Well OK, but then promise me when I seek information we’ll get it.’”

Others say a subpoena function is necessary because the Council has failed to sufficiently exercise its own oversight authority.

“The less muscle and oversight the education committee employs, the more empowered the education agencies are to not be transparent,” says Petroshius. “I think Council oversight has gotten much, much worse, and I’m done with excuses. There are many things at their disposal and it’s not being done, and that’s a deliberate choice.”

Grosso, the education committee chair, defends the council’s oversight. “I do hearings, meetings, legislation, performance and budget hearings, I write letters, I go out and tour buildings and engage in community conversations,” he tells City Paper.

Levy says that while the council still requests and publishes plenty of data, it lost a lot of incentives to police education since the switch to mayoral control. Before 2007, the council would sketch out the school district’s finances, but councilmembers could not control how those funds were actually spent. This often put councilmembers in the position of being blamed for the public school system’s struggles, yet they had few ways to address the problems. As a result, Levy says, the council would enforce tougher oversight, so it could better justify not ponying up funds all the time.

After 2007, though, DCPS’s failures were no longer seen as the fault of the Council, and councilmembers also benefited from the narrative that the city’s school reforms were a great success. “Over the years there are a lot of questions they just didn’t ask,” says Levy.

Questions community members say the education agencies have not responded to, and the Council has not aggressively pursued, include understanding what teacher turnover looks like at the individual school-level, scaled test score results, and more detailed analyses of “at-risk” subgroups within and between schools.

Following a 2015 independent evaluation of D.C. schools that found the city lacked comprehensive, accessible education data, Grosso pushed for an $11 million investment in OSSE’s data-collection capabilities. But today residents and researchers complain that the city’s education agencies still routinely withhold information from the public.

Leo Casey, the executive director of the Albert Shanker Institute, a think tank affiliated with the American Federation of Teachers, tells City Paper that when his center was conducting a national study on the racial composition of the teaching force, D.C. was the only major city to not provide them with the granular data they requested.

“Their story was they didn’t have the data on race and ethnicity that we needed,” says Casey. “And let me just say, the only reason one would not collect race and ethnicity data is if one didn’t want to know it.”

In June, Ruth Wattenberg, an education policy analyst and the Ward 3 representative on D.C.’s state board of education, argued in The Washington Post that the mayor’s “unchecked control” over education data hurts students. While other cities have mayoral-controlled school systems, no jurisdiction other than D.C. has its state superintendent also appointed by the mayor.

Wattenberg proposed making OSSE separate from the executive branch to give the agency more political independence. “We can’t control every aspect of our non-state status, but we can blame only ourselves if we eschew the checks and balances that exist in every state and consign ourselves to constant data spin and data darkness,” she wrote.

Grosso tells City Paper that over the last six months his staff has been closely exploring this idea of making OSSE more independent. “The mayor and her team could also just take their thumbs off the scale,” he says. “There’s nothing stopping the mayor from pulling politics out of schools.”

***

Cheh was the one to bring up the Urban Institute proposal at the July 13 hearing, grilling witnesses from D.C.’s education agencies and the think tank for more details and explanation. Discussions around this alternative RPP had, up to this point, been held in private—and Urban Institute’s pursuit was fresh news to many in the room. While education officials emphasize that discussions are still preliminary, some councilmembers and community advocates characterize it as an attempt to undermine Cheh’s initiative.

Matthew Chingos, the director of the Urban Institute’s education policy program, says their vision would be to establish a research entity modeled on the University of Chicago Consortium on School Research, including a data warehouse component for other independent researchers to use. “The goal is to create opportunities for research that researchers want to be doing, and that’s also to the benefit of local policymakers and practitioners,” he says.

While the Urban Institute would ensure that education researchers could publish their findings, no matter how positive or negative they might be, the D.C. education agencies would get to greenlight what research questions could be pursued in the first place. This is also how it’s done in Chicago, according to Bronwyn McDaniel, a spokesperson for Chicago’s research consortium.

Jeffrey Noel says that the reason Chicago’s RPP doesn’t require more independence from its public school district is because the state of Illinois “has a sufficient amount of independence to do critical oversight and research already.” D.C’s state education agency lacks a comparable level of independence.

“At the end of the day, the District does have some say because it’s their data,” Chingos tells City Paper, speaking of the potential new research consortium within Urban Institute. “So I think the question is how do you balance the need for independence with the need for collaboration and partnership, and how do you create an environment where folks feel comfortable going after hard questions.”

At the Council’s July hearing, Smith, the deputy mayor for education, said community input would be “critical” if the city’s education agencies moved forward with an Urban Institute partnership.

“The Urban Institute situation is exactly what parents and teachers fear,” says Iris Bond Gill, a parent advocate and a former OSSE official. “The city has been discussing a partnership for months in private, behind closed doors, and then they say, ‘Oh of course we want stakeholder engagement.’ But it’s always an afterthought.” (A Bowser spokesperson did not return City Paper’s request for comment on the Urban Institute RPP.)

For now Council leaders disagree over whether the Urban Institute initiative would hamper their proposed research effort.

White says it absolutely would undermine the Council. “It would seem very redundant if the Urban Institute or any other hand-selected research agency was working with our education agencies to collect data,” he says.

Grosso, the education committee chair, was more non-committal, saying it’s not clear that “what Urban wants to do is necessarily going to be the same thing that the Council wants to do.”

Council Chairman Phil Mendelson suggests that Urban’s initiative would not be independent—and therefore not directly competing with their proposal—if it were a partnership with the executive branch. “The issue here is an independent research collaborative, and what was discussed with the Urban Institute was hardly that,” he says.

Chingos emphasized that his think tank does not want to undermine the Council and “certainly want[s] the different efforts to be complementary.” At this point, he added, “everyone’s just figuring out how this all fits together, and we want to see how the legislative process evolves.”

In submitted testimony, Noel, OSSE’s former data director, warned of issues that could arise from establishing two separate research consortiums, with both entities competing for data, funding, educator engagement, and collaboration from other researchers. “Given this risk, I think it is important to outline policy options that could either result in sequenced consortium activities or legitimately limit the need for creation of two,” he wrote.

Noel also warned of housing too much education data outside of local government, where it’s “outside the purview of protections like FOIA and whistleblower protection.” (FOIA, or the Freedom of Information Act, allows residents, and often journalists, to request existing data sets and documents.)

Markup for the Council’s research collaborative will take place after the Council’s summer recess period, and a vote is likely to occur before the end of the calendar year.

Lawsuit Against Project Veritas May Shed New Light on Right-Wing Group’s Internal Operations

Originally published in The Intercept on July 23, 2018.
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A Michigan judge issued a ruling late last week granting the American Federation of Teachers the right to discovery in an ongoing legal battle with Project Veritas, the sting group launched by conservative provocateur James O’Keefe.

The escalating fight, which is being played out in the U.S. District Court for the Eastern District of Michigan, began last September, when the teachers union filed a lawsuit accusing Project Veritas of infiltrating and illegally gathering proprietary information from its Michigan affiliate.

Project Veritas, a right-wing activist group known for releasing undercover video exposés of liberal organizations like ACORN and Planned Parenthood, has taken a special interest in targeting teacher unions over the last eight years. The group has been accused of routinely doctoring its videos, and last year it was caught trying to feed a false story about Roy Moore, then a U.S. Senate candidate in Alabama, to the Washington Post. The discovery in the Michigan case may shed new light on its internal operations.

According to the September complaint, which was filed in state court, Marisa Jorge, a political operative for Project Veritas, presented herself as a University of Michigan student named Marissa Perez who was interested in becoming a teacher. She applied for a summer internship with AFT Michigan and was hired in May 2017. For the next three months, she allegedly gathered a wide range of confidential information on the teachers union. The lawsuit claims that on multiple occasions Jorge was found alone in other employees’ offices, accessing information she, as an intern, had no right to see. In other cases, she requested to attend bargaining sessions, was given access to internal databases, and secretly recorded conversations, according to the complaint.

A Michigan judge responded to the lawsuit by issuing a restraining orderagainst Project Veritas in September, barring the group from publishing or disclosing any materials it may have collected from the union. The next month, following a motion by Project Veritas, the case was moved from state to federal court. In December, U.S. District Judge Linda Parker lifted the restraining order. Parker said the AFT had not sufficiently demonstrated it would be harmed by what Project Veritas had collected. In her decision she wrote that “a preliminary injunction most certainly will infringe upon Defendants’ First Amendment right.”

The union went back to court in early May to try once more to prevent Project Veritas from releasing any documents or videos it had obtained from its Michigan affiliate. Parker denied the AFT’s second request, again citing First Amendment concerns.

Project Veritas began releasing information from AFT Michigan immediately thereafter. In its first post, headlined “BREAKING: Alleged Child Molester Paid Off in Union Negotiation by Michigan American Federation of Teachers,” Project Veritas boasted of releasing documents and undercover footage “which reveals that the union protected a teacher after accusations of sexual misconduct with a seven- or eight-year-old girl arose.”

AFT president Randi Weingarten and  AFT Michigan President David Hecker released a joint statement following the video’s release, calling it a “heavily spliced” smear tactic intended to undermine educators and their unions.

“In this particular case, following accusations of a teacher’s misconduct with a child of a woman he was dating years before, the union and district officials worked together to separate a teacher from service and make sure students were protected,” Weingarten and Hecker stated. “To this day, the teacher denies the accusations, and no charges have been filed. AFT Michigan continues to prioritize the well-being of students and the promise of high-quality public education in Michigan.”

Parker’s new ruling, issued on Thursday, allows the AFT to amend its legal complaint to include information about the video Project Veritas released in May. It also paves the way for the union to begin requesting information through the discovery process.

“It’s going to get interesting now because we have the opportunity to dig pretty deep into Project Veritas and their activities,” AFT Michigan attorney Mark Cousens told The Intercept. “We can discover not only how they work, but what they did in Michigan.” Cousens said the union, through discovery, might request information on Jorge’s relationship to Project Veritas, background on Jorge, and what materials she may have taken while working as an intern.

Weingarten said in a statement that her union is “committed to holding Project Veritas accountable for its unlawful misrepresentations, infiltrations, and splicing and dicing of unlawfully obtained material to smear teachers and public schools.” Weingarten pledged to “move forward in our efforts to bring to light the deceptive, unscrupulous distortion tactics Project Veritas is known for.”

Marco Bruno, a spokesperson for Project Veritas, dismissed the decision. He told The Intercept that the AFT “is winning only the highest award for delusional self-congratulations. Contrary to its claims, AFT’s reckless efforts throughout this lawsuit to censor a Veritas publication failed repeatedly. As far as the case goes, they have won nothing, and their latest pleadings are as weak as their previous complaint. AFT is wasting union members’ dues on a frivolous lawsuit that it has no chance of winning.”

Project Veritas has long targeted teacher unions. In 2010, O’Keefe, the group’s founder, infiltrated a New Jersey Education Association leadership conference and produced a project called “Teachers Union Gone Wild.” His group produced another video last summer that purported to show a New Jersey teacher offering journalists cocaine at a union convention. After that video was released, O’Keefe went on the radio to say his teacher union exposés are not finished. “I don’t ever, ever expect the institutions to hold people accountable, so it’s up to exposures,” O’Keefe said, promising that “we have more coming out.”

And indeed, they did. In May, on top of its AFT Michigan work, Project Veritas released two more undercover videos of New Jersey union officials discussing how to protect teachers accused of abuse, which subsequently led to the suspension of two union presidents. New Jersey Democrats, including state Senate president Steve Sweeney and Gov. Phil Murphy, have since called for investigations into the union’s behavior.

The NJEA released a statement in response to the videos, saying it “does not, in any instance, condone the abuse or mistreatment of children or the failure to properly report allegations of abuse.” The union also announced it would be commissioning an independent review of its local affiliates to ensure that staff and leaders “understan[d] and clearly communicat[e] the responsibility of all school employees to report any suspected abuse of children.”

While the NJEA charged Project Veritas with being a political group “with a long history of releasing deceptively edited videos that later prove to have been dishonest and misleading,” Sweeney did not back down. “They can attack the videos and who did the videos all they want,” he told NJ Advance Mediareferring to the union“But those words were real, those actions were real, and they need to be dealt with.”

Also in May, Project Veritas released another video, showing teachers union officials in Ohio discussing how they would defend educators who abused students. State union officials called the videos doctored and edited to fit the organization’s agenda.

O’Keefe hinted at more videos in the future. Following the Michigan, New Jersey, and Ohio videos, Project Veritas promised to release “more undercover videos of teachers unions from ALL ACROSS THE COUNTRY in the coming days and weeks.”

Maryland’ GOP Governor Recently Opposed Trump on Immigration, But His Record Tells A Different Story

Originally published in The Intercept on July 12, 2018.
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Maryland’s Republican Gov. Larry Hogan made national headlines in June when he recalled his state’s National Guard unit of four soldiers from the southern U.S. border. The only GOP governor to call back troops in protest of President Donald Trump’s child separation policy, he has touted the move as a sign of his commitment to stand up to a remarkably unpopular president.

The governor, who is up for re-election this year, has reveled in his reputation as a moderate Republican, and currently boasts a 69 percent approval rating among Maryland residents who, just two years ago, overwhelmingly voted for Hillary Clinton. But in a year in which Democrats, leaning into opposition to Trump, are expected to have the upper hand come November, Hogan’s re-election is all but guaranteed. Maryland politics can be volatile: When Hogan was elected in 2014, his Democratic opponent was leading by 13 points at this stage of the race. And immigrant rights groups say his recent grandstanding with the National Guard is an exception to a long and hostile record on immigration, one that includes calling for greater cooperation with U.S. Immigration and Customs Enforcement and restricting the entry of Syrian refugees into the state.

“Unfortunately, Gov. Hogan has not been a good friend of the Latino and immigrant community,” said Gustavo Torres, the president of CASA in Action, a group that advocates on behalf of immigrants on the electoral level. “He’s been extremely quiet in moments when we needed real leadership, and other times he has attacked immigrants using the same talking points about criminals and danger the president relies on.”

The state has a sizable immigrant population. In 2015, nearly 1 million foreign-born individuals lived in Maryland, comprising about 15 percent of the state’s population. According to the American Immigration Council, nearly 42 percent of Maryland’s building maintenance workers and groundskeepers are immigrants, as are a quarter of all state health care workers.

Ben Jealous, the Democratic nominee in the gubernatorial race and former NAACP president, has been a vocal immigrant advocate in the state. In 2013, the Baltimore Sun named Jealous “Marylander of the Year,” in part for his work helping to pass the state’s DREAM Act, which grants in-state college tuition to undocumented students. On his campaign website, Jealous has pledged to work with the legislature to pass a sanctuary state bill, make Maryland welcoming for refugees, defend DREAMers, and champion a pathway to citizenship on the federal level. He was arrested at a White House immigration protest last year.

Democrats outnumber Republicans 2-1 in Maryland, and the party is hoping to mobilize anti-Trump voters, seizing on the national momentum for a “blue wave” election. With two-thirds of Americans opposed to Trump’s immigration policies, immigration may well be a motivating issue for Maryland voters come November. According to a poll released in mid-June, the No. 1 issue for nearly half of Maryland Democrats is removing Trump from office. Jealous’s political strategy is to try and link a popular governor to an unpopular president.

“Donald Trump’s policies are extreme and racist, and it’s even more important that we have governors with courage and experience to move us forward no matter what happens in Washington,” Jealous told The Intercept.

As Josh Kurtz, an editor at Maryland Matters, put it, Hogan may have more difficulty “inoculating himself from President Trump and the Republican Congress” on immigration, given that it’s an emotionally salient issue that’s easier for average voters to understand. “If this issue remains so raw in the months ahead — and it could — swing voters, unreliable Democratic voters and new voters could all be reminded of the things they don’t like about the GOP,” wrote Kurtz.

Most voters have not been paying attention to the details of Hogan’s immigration record, so whether or not immigration plays a major role in the election will depend on how much Jealous decides to focus on it, said Daniel Schlozman, a political science professor at Johns Hopkins University. “It’s not impossible for immigration to be a major issue,” he said. “It just requires taking a record in bits and pieces and figuring out how to tell the voters what it means.”

Hogan’s re-election campaign website does not make any mention of immigration or immigrant communities. Amelia Chasse, a Hogan spokesperson, told The Intercept that the governor has “consistently called on Congress and the federal administration to work in a bipartisan manner to enact comprehensive immigration reform, and has repeatedly stood up to the Trump administration on immigration related issues that could impact Maryland.” Chasse cited Hogan’s removal of the National Guard troops last month and his opposition to the president rescinding the Deferred Action for Childhood Arrivals program as examples, both of which put the governor in line with most centrist Republicans. Chasse also pointed to the governor’s marriage to Yumi Hogan, a first-generation American who emigrated from South Korea.

Jealous has not yet taken Hogan to task on immigration, but Jerusalem Demsas, Jealous’s campaign spokesperson, indicated that the issue might become central to the campaign. “From his time as President of the NAACP to when he co-chaired the successful effort to pass the Maryland DREAM Act, Ben has stood up for immigrant families,” Demsas wrote in an email. “He will be no different during this campaign and when he is governor.”

Hogan, who was first elected in 2014, has tried to strike a delicate balance on immigration issues. As a Republican governor in a strong blue state, he’s tried to both distance himself from Trump and skirt the heated battles many of his red-state counterparts have leaned into; Hogan often reminds his constituents that immigration is an issue largely under the federal government’s purview.

That hasn’t stopped him from weighing in on a number of issues at the intersection of immigration and state policy, however. On the 2014 campaign trail, for example, he came out in opposition to Maryland’s policy of allowing undocumented immigrants to obtain driver’s licenses. He acknowledged he’d be unlikely to repeal it as governor, given the veto-proof Democratic majority in the Maryland legislature.

Upon taking office in January 2015, Hogan instructed the state-run Baltimore City Detention Center to provide ICE agents with 48 hours’ notice before an undocumented immigrant targeted for deportation was set to be released, so that feds could assume custody and try to remove them from the country. Hogan defended this move, saying he was merely complying with the Obama administration’s policy. The Washington Post editorial board praised Hogan’s stance as “common sense” and “responsible.”

But Hogan’s predecessor, Martin O’Malley, a Democrat, had bucked the Obama administration on a similar, more extreme policy in 2014, instructing the Baltimore jail not to automatically cooperate with ICE’s request to hold immigrants beyond their scheduled release from custody — what is commonly known as a detainer request. Other cities and states, including New York City and Connecticut, took similar measures at the time.

Later on in Hogan’s first year, over the objection of activists and faith leaders, he told the federal government that more Syrian refugees would not be welcome in Maryland. Hogan cited “safety and security” concerns. (He was joined by governors in 29 other states, most of them Republican, who demanded an end to Syrian refugee resettlement.) When then-Secretary of State John Kerry and Homeland Security Secretary Jeh Johnson sent Hogan a joint letter to reassure him that the vetting process was exhaustive and comprehensive, Hogan dismissed it, saying his position on Syrian refugees is “not going to change.”

Asked to comment on the issue, Chasse pointed out that the governor asked for more stringent vetting procedures, but that “the state has no authority over refugee resettlements.”

Immigrant rights activists say things deteriorated even further after Trump was elected.

First came Trump’s travel ban on refugees and citizens of Muslim-majority countries in January 2017. “Hogan was very quiet, very silent. He didn’t take any lead at all on responding to the attacks against Muslims,” said Torres of CASA in Action. While people all over the country poured into airports and the streets to protest the president’s executive order, Marylanders were upset by their Republican governor’s silence. Hundreds protested outside his home in Annapolis in February demanding he speak up and denounce the travel ban. Hogan dismissed the pressure, saying he’s “focused on solving Maryland problems” and that he doesn’t see protesting Trump’s policies as “his role.”

A month later, as activists in the state began to ramp up efforts to protect immigrant communities from the Trump administration, Hogan came out to say that efforts to limit cooperation with ICE were “absurd” and that he would do all in his power to kill the legislature’s attempt to pass a so-called sanctuary bill.

Hogan was referring to the Maryland Law Enforcement and Governmental Trust Act of 2017, which would have curtailed state law enforcement agencies from disclosing nonpublic records to ICE, and barred state officials from asking crime victims or suspects about their immigration status. The measure was broadly supported by the state’s Latino, Asian, and black caucuses, as well as a host of progressive advocacy groups. “Maryland is different from most states in that we allow undocumented residents to obtain driver’s licenses,” testified the bill’s sponsor, state Sen. Victor Ramirez, a Prince George’s County Democrat. “We must assure those residents that their information is safe and will not be used for immigration purposes.”

Hogan made his opposition to the bill clear, vowing to veto it immediately should it land on his desk. When the Maryland House of Delegates passed a version of the Trust Act, Hogan released a statement calling it an “outrageously irresponsible bill” that will “endanger” Maryland citizens.

To gin up opposition to the Trust Act, Hogan pointed to a recent scandal in the Maryland suburb of Rockville involving two undocumented immigrants. On March 17, 2017, two male students were arrested for allegedly raping a 14-year-old girl in the bathroom. Both students were undocumented, and one was already in deportation proceedings. Montgomery County, where Rockville is located, had implemented sanctuary policies for immigrants in 2014, and Hogan quickly cited the students facing rape charges as a reason for why the legislature should avoid bringing similar policies statewide. (The Montgomery County policy stated that officials would not honor ICE detainer requests without adequate probable cause.) U.S. Attorney General Jeff Sessions also cited the Rockville rape charges as reason to block any sort of sanctuary bill.

But the case fell through. The rape charges were dropped less than two months after the state’s attorney investigated the allegations. “The Hogan administration immediately accused the progressive immigrant policies in Montgomery County as being the cause for the crime, when in reality the teenagers were not guilty,” said Torres. The scandal was enough to help kill the Trust Act, which ended up floundering in the Senate.

Hogan sent out a fundraising letter shortly thereafter asking conservatives for help fighting “a far left agenda and the worst instincts of an increasingly liberal and out-of-touch state legislature.” As evidence of that, Hogan blasted Democrats for “focusing their efforts on trying to make our state a safe haven for criminals here illegally.” He went further, saying “we cannot allow Maryland to become a sanctuary state. Our local law enforcement should be doing more — not less — to make sure criminals here illegally are turned over to federal immigration officials. The rule of law must come first and we will do whatever we can to stop any so-called ‘sanctuary bills’ that would limit how jails and police could assist federal authorities.”

When it comes to limiting law enforcement and corrections entanglement with immigration enforcement, “Governor Hogan has had a largely obstructionist track record,” the American Civil Liberties Union of Maryland said in a statement. In addition to his stated desire to reject refugees from Syria, the civil liberties group pointed to Hogan’s vocal opposition to the Trust Act, which “would have implemented a range of reasonable safeguards for Maryland’s immigrant communities,” including ensuring that state and local policies do not run afoul of Fourth Amendment protections, and stopping Maryland from contributing to any Trump Muslim registry.

Immigrant advocates have also blasted Hogan for his silence on Trump’s decision to end temporary protected status, or TPS, a form of relief that allows citizens of countries undergoing turmoil or recovering from natural disasters to stay in the United States. Most TPS recipients hail from El Salvador, Honduras, and Haiti, and over 20,000 live in Maryland. The cancelation of TPS means citizens of those countries will lose their protected status by September 2019. The chair of Maryland’s Democratic Party, Kathleen Matthews, issued a statement at the start of 2018 calling on the governor to “use the bully pulpit” he has to fight for TPS immigrants in his state.

“Many of these people have lived here for more than 20 years,” said Torres. “The president is canceling this extraordinary program, and Gov. Hogan has been very quiet. This is going to have a huge impact on our economy.” Chasse, Hogan’s spokesperson, did not specifically address the concern about TPS.

“I think a lot of people assume that Larry Hogan is good on a host of issues, when he really has been missing in action,” said Jay Hutchins, the executive director of the Maryland Working Families Party. “Everything is moving so quickly and ramping up, and we’re losing a lot of ground. There’s just absence of real leadership.”

According to recent polls, Maryland voters are not necessarily swayed by Hogan’s law-and-order immigration rhetoric. A Washington Post-University of Maryland poll released in March found that 75 percent of Maryland residents said they thought having local police more actively identify undocumented immigrants for potential deportation would likely deter immigrants from informing police of crime. Seventy-one percent said immigration enforcement should be left mainly to the feds.

Some advocates, like Torres of CASA in Action, go so far as to argue that Hogan’s tendency to frame immigration issues largely in terms of crime and safety could come back to bite him in November, like it did for Republican gubernatorial candidate Ed Gillespie in Virginia last November.

“The same thing happened in Virginia. The Republican candidate used the same language and it backfired,” Torres said. “I think that will happen here in Maryland. People are going to vote against someone who is so weak for our community.”

Teachers File New Labor Charge Against Cesar Chavez Charter Network and TenSquare, a Consulting Firm

Originally published in Washington City Paper on July 6, 2018.
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An ongoing legal battle between unionized teachers at Chavez Prep Middle School in Northwest D.C. and their charter school escalated today. The union filed a new unfair labor practice charge with the National Labor Relations Board, this time naming TenSquare Group, a charter school consulting firm, a joint-employer of the school. This is the fourthcharge the union has filed against the Cesar Chavez Public Charter School network since August, but the first time TenSquare has also been named liable.

In its latest complaint, the union alleges that the charter network and TenSquare have illegally changed the school’s calendar for the 2018-19 school year in ways that affect terms of employment, have bargained in bad-faith (referred to as “surface bargaining”), and have walked out of a bargaining session before its scheduled end time, “thereby disregarding their bargaining obligation under the [National Labor Relations] Act.”

Chavez Prep became the first unionized charter school in the city when a majority of its staff voted to unionize in June 2017. The union filed its first charge with the NLRB two months later, and in March, the NLRB issued its first complaint against the school, finding that the charter network violated federal labor law, both by making unilateral changes to the working conditions at Chavez Prep instead of allowing teachers to bargain over them, and by issuing rules across all four of its schools “interfering with, restraining, and coercing employees in the exercise of rights” guaranteed under the National Labor Relations Act.

A trial before an administrative law judge to address all the union allegations found meritorious is scheduled for July 24.

Jennie Tomlinson, the school librarian at Chavez Prep who sits on her union’s bargaining team, told City Paper that “over the many bargaining sessions held over the past year, it’s just become really obvious to us that TenSquare is calling the shots here.” Tomlinson is headed into her sixth year working at Chavez Prep.

The school has dismissed the earlier allegations. In March, school CEO Emily Silbersteintold City Paper that “complaining to the NLRB” is a “common tactic in the AFT’s playbook as the union seeks to expand its membership in charter schools.”

In May, City Paper published an investigation into TenSquare, a consulting firm that has largely operated under the radar but has landed lucrative “school improvement” contracts with D.C. charter schools. The Cesar Chavez charter network signed a five-year $5.8 million contract with TenSquare in 2017.

In late April, Chavez Prep teachers staged two outdoor demonstrations to protest their charter’s TenSquare contract. The educators objected to their school paying the company $138,000 every month while also claiming to be unable to afford filling vacant teacher positions.

Following the protests, Silberstein and Rick Torres, the charter’s board chair, emailed the school’s staff to defend their TenSquare partnership. “To continue working in this high stakes environment, we must show immediate and dramatic improvement,” they wrote. “…TenSquare’s proven plan of support focuses on directly improving school performance while simultaneously building infrastructure and systems to ensure that Chavez can sustain improvements on our own into the future. The TenSquare team of 13 that is supporting Chavez is a group of expert practitioners – specialists in curriculum, instruction, data analysis, operations, talent management and other areas where Chavez must improve.” Silberstein and Torres credited TenSquare for helping them implement a number of changes over the past year, including re-negotiating inefficient vendor contracts and reducing excess leased space.

Josh Kern, a TenSquare partner and founder of the company did not return City Paper’s request for comment on the union’s new charge. Neither did Raymond Pascucci, the attorney representing Chavez Prep in contract negotiations. City Paper will update this post should we hear back.

Silberstein, the school’s CEO, who is also listed as an employee on TenSquare’s website, told CityPaper that the union’s latest complaint, like the others, “distorts the nature of negotiations at Chavez Prep.” With regards to the union’s changed-calendar allegation, she says: “We have discussed the calendar for the upcoming school year at the last two bargaining sessions, where management has explained the importance of designing a schedule that maximizes attendance by our scholars and our staff. Our calendar largely follows DC Public Schools, because many of our scholars have family members there, and Prince George’s County Public Schools, where many Chavez employees live and enroll their own children. When we’re out of sync with those systems, attendance and learning suffer. We will continue to negotiate with the union over the calendar, but absent an agreement, we will continue to follow the principles that have determined Chavez Prep’s calendar in recent years. The union is seeking to minimize the number of days its members work, and we are trying to maximize the number of days our scholars learn.”

As for the joint-employer issue, Silberstein says Chavez Prep teachers are “solely employed” by Chavez Schools. “Our legal and management consultants are acting in these contract negotiations as advisors and agents for our network’s board,” Silberstein adds, “just as Chavez Prep’s teachers and staff are being advised and represented by outside counsel from the American Federation of Teachers.”

The question of what constitutes a “joint-employer” is one of the most hotly contested questions in labor law. Companies have historically only been considered joint employers if they exercised “direct and immediate” control over workers. But in August 2015, the National Labor Relations Board issued a decision that expanded legal liability for companies that franchise and contract out services, putting businesses more squarely on the hook for how their contractors treat their workers. In its Browning-Ferris decision the NLRB found Browning-Ferris Industries to be a joint employer of the workers hired to staff its recycling center because Browning-Ferris “exercised control over terms and conditions of employment indirectly through an intermediary.”

In December 2017, the now-Republican-controlled federal labor board overturned the decision in a 3-2 vote, returning the joint-employer standard to what it had formerly been before Browning-Ferris. But in an unexpected turn of events, that decision was then vacated two months later when the agency’s inspector general found that one of the Republican NLRB members should have recused himself from the December vote due to a conflict of interest. If he had recused himself, the vote would have been 2-2, and the Obama-era joint-employer standard would have survived. In other words, the Browning-Ferris standard remains the law. Last month the NLRB announced it now plans to address the joint-employer debate through the rule-making process, rather than through the courts.

A spokesperson for the union representing the Chavez Prep teachers told City Paper that none of this really matters for their purposes, because TenSquare should be held legally responsible no matter which joint-employer standard is used.

“Because they exert direct influence over the school, we would argue TenSquare is a joint employer under both the Obama-era Browning Ferris standard, as well as more restrictive standards supported by Republican NLRB members,” the union spokesperson said.

It is unclear what effect the charge filed today will have on the matter set for trial on July 24.

After Janus, The Country’s Largest Public-Sector Union Takes Stock of Its Movement

Originally published in The Intercept on July 5, 2018.
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The annual meeting of the National Education Association, the country’s largest public-sector union, held in Minnesota this week was much more high stakes than in years past. Typically, the convention is a chance for educators to vote on bread-and-butter issues like budget priorities and advocacy target areas. But the 8,000 or so students, retired teachers, and NEA delegates who descended on the Minneapolis Convention Center had more existential questions on their minds. In the wake of a U.S. Supreme Court ruling that dealt a crippling blow to public-sector unions, they debated strategies to expand their membership, keep union members apprised of their rights, and recover from the impending financial loss that is sure to happen in a post-Janus world.

In Janus v. American Federation of State, County, and Municipal Employees, a 5-4 Supreme Court majority ruled last week that despite laws requiring public-sector unions to represent all workers in a workplace, fees charged to non-members to support the costs of collective bargaining violate the First Amendment. For more than four decades, the Court has held it constitutional for unions to collect money from non-members to support the costs of negotiating contracts on their behalf. Janus overturned that precedent, meaning that employees can now enjoy the benefits of collective bargaining without having to pay for it. Labor unions are bracing for substantial revenue loss.

Now, the choice before teachers is paying either hundreds of dollars in annual membership dues, or nothing at all. The NEA, which represents a little over 3 million members, is forecasting a loss of 370,000 members over the next two years. Approximately 88,000 educators have been non-members paying NEA agency fees, and the union anticipates at least several hundred thousand current members will also rescind their union cards.

“Janus was nothing more than a pretext for the Koch brothers and all their funded-friends to push for union members to drop out,” NEA President Lily Eskelsen García told The Intercept. “With Janus, they don’t care about the [agency] fee payers, they care about reducing our resources and our actual members.” She pointed to the multi-million dollar effort recently launched by a Koch-backed group to persuade dues-paying members to opt-out.

In light of these realities, the NEA approved a two-year budget at its convention that scales back union expenditures by $50 million. Union leadership maintains that this scaleback will not impact the organization’s political activities. “We’re looking at getting economies of scale as best we can,” explained Jim Testerman, the senior director at the NEA’s Center for Organizing. “How many more meetings can we do digitally, can we cut back on food, travel, are there different ways to approach the work. We also didn’t replace 40 staff who retired in January.”

While some states where NEA wields the most influence, like California, New York, and New Jersey, have required non-members to pay agency fees, the recent wave of teacher strikes that exploded across the nation in states like West Virginia, Arizona, and Oklahoma occurred in right-to-work states — which purport to protect workers from being required to join unions, but make collective bargaining more challenging and don’t require agency fees. Conservatives point to the walkouts as proof that agency fees aren’t really necessary. But workers in right-to-work states say they understand their efforts are aided by the national unions, which will certainly take a financial hit from Janus.

Back in the 1980s, when Eskelsen García was a 6th grade teacher, she served as bargaining chair for her union in Utah, a non-collective bargaining state. “There’s still a lot you can do without anyone’s permission,” she said. Just as superintendents and school board members largely supported the teachers who went on strike in red states this year, Eskelsen García said many administrators have shown willingness to bargain with unions even when not compelled to by state statute.

Indeed, at the NEA convention, despite the looming financial threats, the thousands of attendees were palpably emboldened by the teacher walkouts, collective actions that gave them a renewed and clearer sense of their own power. Though the protests were not union-initiated — beginning spontaneously with the grassroots — Testerman, of the NEA’s Center for Organizing, said his union is working to marry “the organic and the organized” as actions erupt. “It’s something we got better with over time, and Arizona was a good example,” he told The Intercept. “You don’t want the union to take it over, but having some organized entity who can get you permits and porta-potties and things like that can help you get even more done.” According to Testerman, Arizona’s NEA affiliate has seen an 8 percent increase in its membership since last year. “I don’t think the walkouts are over,” he added, noting that the future of the movement will depend on what happens in upcoming legislative sessions.

Delegates Reject Proposal to Open Union Membership to Supporters

One of the most contentious items considered at the NEA convention was a proposed constitutional amendment to create a new category of union membership, open to “any person who demonstrates support in advancing the cause of public education” and “advocates for the mission, vision and core values of the Association.”

The idea was formed last year in the wake of Betsy DeVos’s nomination to lead the Department of Education, Eskelsen García explained, when parents and community members flooded the NEA with questions on how they could speak out in opposition to DeVos and better support public education. Then, in the midst of the teacher strikes, the NEA president said, the outpouring support from non-educators proved crucial in building a broad political coalition for the walkouts. Under the proposal, so-called “community ally” members would pay minimal union dues but would be ineligible to vote on union matters or hold governance positions. The biggest opportunity this membership category would create, supporters explained, would be to make it possible for community allies to contribute to the NEA’s political action committee; only NEA members can legally contribute to the PAC, and given the expected decline in membership, this change would have given the PAC an additional stream of funds. The proposal also would have enabled the union to contact supportive members of the public directly. “We’re organizers in our bones,” Eskelsen García told The Intercept. “Why not organize them?”

The proposal triggered heated debate on Tuesday afternoon. Some members voiced concerns about opening up the union to outside political influence. “Selling stockholder shares in our union is a dangerous one,” warned a delegate from Michigan. “When you purchase stock, you expect a return on your investment.” Marshall Thompson, a delegate from Minnesota, called the idea half-baked. “Does my union card mean something or not?” he asked. “Bill Gates should not be able to buy one.”

NEA leadership defended the proposal, explaining that four other major unions, including AFCSME, have a similar membership category for the public, and all but 14 of the NEA’s state affiliates do too. For example, the Pennsylvania NEA affiliate has a “Partners for Public Education” membership category. Plus, NEA leaders added, community allies would have the same $5,000 political contribution limits to the PAC as do regular members. Tripp Jeffers, a delegate from North Carolina, spoke in favor of the amendment, saying a version of it already works well in his state. “We get by with a little help from our friends,” he quipped. Joe Thomas, the president of the Arizona Education Association, also defended the amendment, reminding the audience that the parents and community members who walked alongside educators during Arizona’s six-day teacher strike were instrumental in helping the union rebut the political narrative that their action was solely about teacher wages.

That was not enough to convince the 8,000 delegates, though. The measure was narrowly defeated on Wednesday, with just over 60 percent of delegates voting in favor. Constitutional amendments require a two-thirds majority to pass.

Reauthorization and Affirmative Consent

Janus has also sparked a legal and political debate over whether dues-paying members need to proactively reauthorize their union membership. The majority opinion, authored by Justice Samuel Alito, states that “neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” Conservatives have latched onto this “affirmative consent” idea to say that all those represented by a union, members and agency-fee payers alike, should have to affirmatively opt-in.

But labor groups have taken an alternative reading. At the NEA convention, the union’s general counsel Alice O’Brien told the crowd of delegates that Janus “does not mean that unions have to re-sign existing members. Janus is about fee payers,” she said. “Nothing in Janus supports an employer [who] insists a union must submit new proof that existing voluntary members want to remain members.”

Eskelsen García told The Intercept that the NEA has already received reports of school districts and school boards asking unions to submit new proof of membership. “But Janus doesn’t require that, and part of our mission right now is we have to make sure that our folks across the country understand that Janus was very specific in saying you can’t require a non-member to pay fees,” she said. “It doesn’t require re-signing up members, but we anticipated there would be a lot of misinformation from the Koch brothers and others. We’ll get this straightened out.”

The question over re-commitments first arose three years ago, when the Supreme Court heard the case of Friedrichs v. California Teachers Association, an anti-public sector union case considered to be the predecessor of Janus. (Friedrichs also challenged public-sector agency fees, but Justice Antonin Scalia’s unexpected death in 2016 resulted in a 4-4 decision that left the fees alive until Janus was brought before the court.) Despite the teacher union’s position that re-commitments are not legally necessary, both the NEA and the American Federation of Teachers have been working since then on getting re-commitments from all their members. The AFT reports that out of 800,000 members in 18 states with agency fees, more than 500,000 members have pledged membership renewals since January.

“The re-commit campaigns have really been an organizing strategy to go out and talk to our members about what these Supreme Court cases mean, and the value of belonging and acting collectively,” Testerman told The Intercept. “If members don’t know who the union is and what the union stands for, they are not likely to remain a member and we’re not taking anything for granted.” He said the NEA has seen a growth in membership for the last three years in a row, at an average of 0.5 percent per year.

But the tactics some union affiliates have taken to secure member re-commitments have stirred controversy, and they may be legally vulnerable in the post-Janus world.

In Minnesota, for example, the 86,000-member statewide teachers union asked educators to fill out membership renewal forms for the 2017-18 school year, authorizing the union to deduct dues. The forms included a fine-print disclosure that said “this authorization shall remain in effect and shall be automatically renewed from year to year, irrespective of my membership in the union, unless I revoke it by submitting written notice to both my employer and the local union during the seven-day period that begins on September 24 and ends on September 30. (emphasis added)”

The general counsel for the Center of the American Experiment, a conservative think tank, said the Minnesota teachers union was “betting that most teachers will just sign the card without reading it, or understanding what it means—and just keep paying.”

Los Angeles teachers took a similar approach. In its recommitment campaign, the United Teachers of Los Angeles asked members to sign membership forms with fine print that said, “This agreement shall be automatically renewed from year to year unless I revoke it in writing during the window period, irrespective of my membership in UTLA.” The legal language was first reported by Mike Antonucci, who runs the Education Intelligence Agency, a union watchdog site. “So a teacher who takes an administrative position, or leaves teaching altogether, and is then ineligible to be a UTLA member, will still be on the hook for dues payments until the next window comes around,” Antonucci surmised.

Both the Minnesota and Los Angeles re-commitment forms are constitutional under Janus’s “opt-in” requirement, said Charlotte Garden, a professor at Seattle University Law School. She added that she “also expect[s] the National Right to Work Foundation or other anti-union groups to challenge them in court, arguing they aren’t solicitous enough of objectors.” Garden said those types of challenges will “bring into conflict” two beliefs held by conservative members of the Supreme Court: that unions “must take various affirmative steps to facilitate the rights of objectors they represent” and that “employees should be held to the contracts they sign.”

Some conservative-backed litigation is already coming down the pipe.

Eight NEA state affiliates, including some in New York, Maryland, California, and Washington, are currently targets of class action lawsuits seeking to recover agency fees previously paid to the teacher unions before Janus. “The lawsuit we filed is a refund of the fees that were illegally retracted,” said John Bursch, the lawyer who filed the class action on behalf of California teachers. Alice O’Brien, the NEA’s general counsel, reminded delegates at the convention that whomever replaces Justice Anthony Kennedy, who announced his retirement just hours after siding with the majority in Janus, could help decide whether unions must pay back agency fees or not.

Another case, filed in February 2017, takes square aim at union opt-out rules. In Yohn v. California Teachers AssociationRyan Yohn and seven other California educators objected not only to paying agency fees but also to bureaucratic hurdles employees must go through if they want to opt-out of union membership. The teachers argue workers should have to affirmatively opt-in to a union, not opt-out. “We’re not free-riders, we’re forced riders,”one plaintiff told Education Week in February. The case is being brought by the Center for Individual Rights, the same libertarian law firm that brought the Friedrichs suit.

Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School, told The Intercept that she has no doubt that conservative groups will aim to push the limits of the Supreme Court’s holding in Janus for cases like Yohn. “I’m afraid that Janus has opened up additional fronts in the war these groups are waging on public-sector unions and the labor movement more generally,” she said. “We will see litigation for years.”

Union-Friendly Legislation in the Wake of Janus

In anticipation of a Supreme Court decision striking down agency fees, unions have been lobbying state legislators for the last few years to support new bills that could help labor strengthen its position. Specifically, labor organizations have pushed for new measures that would more easily allow union representatives to make the case for membership to new public-sector employees and to limit the services unions have to provide to non-members.

Last year in California, the legislature passed two such bills: one that allows public-sector unions to give presentations to new employees during their job orientations, and another that restricts what government employers can say to their staff about the pros and cons of joining a union. Two bills are pending now that would give labor groups an opportunity to weigh in on a worker’s intent to cancel their union dues.

Maryland legislators passed a bill this spring requiring new teachers to meet with a union representative within 30 days of their hiring or by their first pay period. It became law in April without the signature of Gov. Larry Hogan, a Republican.

New Jersey Gov. Phil Murphy, a Democrat, signed a more expansive bill in May that gives unions a number of new protections, including the right to meet with new employees for at least a half hour within 30 days of being hired and a guarantee that public employers will provide the union with exclusive representation contact information for all new employees.

In New York, Democratic Gov. Andrew Cuomo in April signed what he called “the Janus bill,” which in addition to providing unions with contact information for all new public-sector workers, also makes clear that unions are not required to provide non-members with the full range of union services. For example, non-members facing disciplinary charges will now have to obtain their own attorneys, whereas the union covers legal representation for dues-paying members. Last week, immediately following the Janus decision, Cuomo issued an executive order to protect public employee contact information from those who may try to target them in union opt-out campaigns. It was mostly a symbolic gesture, since the state already has similar privacy protections on the books.

Aside from these bills, Sharon Block of the Labor and Worklife Program at Harvard Law School and Benjamin Sachs, a Harvard Law School professor and editor-in-chief of the On Labor blog, put forth another legislative proposal to help unions cope after Janus. “The simplest, and the most effective, move would be for states to change, quite subtly, the accounting system for union dues,” they wrote last week in Vox. While unionized public-sector workers currently earn about 17 percent more than their non-unionized counterparts on average, the now-unconstitutional agency fees have comprised about 2 percent of that wage premium. Under the system reviewed by the Supreme Court, employers paid this 2 percent to workers, and workers then had to pay that money back to the union as an agency fee. “But if public employers simply paid the 2 percent directly to the unions — giving the same 15 percent raise to employees but not channeling the extra 2 percent through employee paychecks,” Block and Sachs wrote, “then there would be no possible claim that employees were being compelled to do anything, and thus no constitutional problem.”

“We’re up against something pretty scary,” Lily Eskelsen García said this week in Minneapolis, speaking before thousands of delegates. “Janus is the latest attack on our union, but this ain’t our first rodeo… We don’t get scared, we get ready.”

Supreme Court’s Janus Decision Opens A “Pandora’s Box” For Public-Sector Unions

Originally published in The Intercept on June 28, 2018.
——

Six years after Supreme Court Justice Samuel Alito first signaled his interest in striking down agency fees on First Amendment grounds, he authored a crushing blow to public-sector unions in a giddy 5-4 opinion issued Wednesday.

Janus v. AFSCME resolved whether agency fees, also known as “fair-share fees,” can be collected from public-sector employees who do not wish to be members of a union. Under the law, a public-sector union has to represent all workers in a workplace, irrespective of whether they opt to be union members. Charging agency fees has historically enabled unions to avoid the free rider-problem — without them, employees could enjoy the benefits of collective bargaining without paying the dues required to support union activities.

This week, the Supreme Court affirmed that no agency fee or any other form of payment can be deducted from an employee, “nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” The decision has immediate ramifications for the nearly 7 million state and local government workers represented by a union, of which 58 percent are women and 33 percent are African-American, Asian-American, Pacific Islander, and Latino. There are 17.3 million public-sector workers across the nation.

For more than 40 years, the Supreme Court has held that there’s a constitutional difference between a union’s political activities and its collective bargaining work. Compelling workers to fund the former would infringe on their freedom of speech, the court ruled in 1977 in a unanimous decision known as Abood v. Detroit Board of Education. But, the justices determined in Abood, requiring agency fees to support collective bargaining work was constitutional. Now the court has taken a knife to that distinction.

Many expected this outcome two years ago, when the court heard Friedrichs v. California Teachers Associationa case in which 10 public school teachers challenged the constitutionality of their mandatory agency fees on First Amendment grounds. While the 9th Circuit Court of Appeals disagreed with the teachers’ position, the Supreme Court seemed inclined to side with the challengers. But when Justice Antonin Scalia unexpectedly died in February of 2016, the court ended up issuing a 4-4 decision, preserving the 9th Circuit’s ruling. On Wednesday, the conservative members of the court got a second bite at the apple.

Writing for the majority, Alito was extremely dismissive of AFSCME’s argument that labor organizations will be less effective if agency fees are struck down. To support its case, Alito pointed to the 28 states that currently have laws on the books prohibiting agency fees as proof that those fees are not essential to avoid conflict between competing labor advocacy groups — something both U.S. employers and American labor law discourage.  Even without agency fees, Alito argues, workers in 28 states enjoy exclusive representation.

“Whatever may have been the case 41 years ago when Abood was decided, it is thus now undeniable that ‘labor peace’ can readily be achieved through less restrictive means than the assessment of agency fees,” the majority opinion reads.

When it comes to the free-rider problem, the court was similarly dismissive, citing the arguments raised by unions as “insufficient to overcome First Amendment objections” and not representing a compelling state interest to begin with.

In the dissent, authored by Justice Elena Kagan and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, Kagan writes that the majority “fails to reckon with how economically rational actors behave.” She argues that the majority ignores the basic fact that public-sector unions must represent all workers in a workplace, in contrast to private groups that can choose to represent only those who actively opt-in. Kagan also notes that the “Court today wreaks havoc on entrenched legislative and contractual arrangements,” rendering thousands of city, county, and state contracts across the country illegitimate. In other words, previously existing collective bargaining agreements in the public sector will now need to be re-negotiated, many of them all at once. New York City, for example, currently has agency fees in 144 contracts with 97 different public-sector unions. “[The majority dismantles these agreements] with no real clue of what will happen next — of how its action will alter public-sector labor relations,” the dissent states. “It does so even though the government services affected — policing, firefighting, teaching, transportation, sanitation (and more) — affect the quality of life of tens of millions of Americans.”

Conservatives immediately cheered the decision.

“The Supreme Court has freed millions of American workers from manipulation by union bosses that misrepresent their interests,” said Tim Huelskamp, president and CEO of the right-wing Heartland Institute, in a statement. “On the heels of this decision, every state should move quickly to certify that no American worker is ever compelled to give their hard-earned money to support self-serving union bosses.”

The plaintiffs in Janus and the cases that helped lay the legal foundation for it were supported by a web of conservative legal advocacy groups and right-wing foundations, including the Center for Individual Rights and the National Right to Work Legal Defense Foundation.

In a statement released after the Janus decision, Lee Saunders, president of AFSCME, declared that “despite this unprecedented and nefarious attack” the “American labor movement lives on, and we’re going to be there every day, fighting hard for all working people, our freedoms and for our country.”

Randi Weingarten, president of the American Federation of Teachers, echoed the dissenting judges, calling the Janus decision “a warping and weaponing of the First Amendment, absent any evidence or reason, to hurt working people.”

While unions are resolving publicly to fight back, they have also begun to prepare for the worst. The National Education Association, for example, which is the nation’s largest public-sector union, is forecasting a loss of 307,000 members over the next two years, and is planning to reduce its expenditures by $50 million during that period. There are currently 3 million members in the NEA.

Progressive economists say that Americans should expect to see economic inequality increase as public-sector unions adjust to a post-Janus world. According to the left-leaning Economic Policy Institute, “[a]s union membership has fallen over the last few decades, the share of income going to the top 10 percent has steadily increased.” When union membership peaked at 33.4 percent in 1945, the share of income going to the top 10 percent was 32.6 percent. By 2011, when union membership was down to 11.1 percent, the share of income going to the top 10 percent reached 48 percent. The gap is even more stark when it comes to wealth: In 2017, the top 1 percent of American households owned 40 percent of the nation’s wealth, a higher share than at any point since 1962. The top 1 percent owns more wealth than the bottom 90 percent combined. EPI attributes these trends to the lack of bargaining power that non-union workers have to negotiate their wages, among other factors that have made wealth distribution more unequal.

The Janus decision, though long expected, begets a new period of uncertainty in American labor relations. As The Intercept previously reportedsome labor activists, like those in the International Union of Operating Engineers, argue that Janus may have some unintended consequences that empower unions. If, as per Janus, collective bargaining is speech, then it is subject to powerful First Amendment protections. The majority may have inadvertently opened up the floodgates for countless new union-led lawsuits against governments that try to restrict their speech, by, for example, limiting the scope of their contract negotiations to predefined topics. Dismantling Abood, they say, could open “a tremendous Pandora’s box.”

Has the New America Foundation Lost its Way?

Originally published in Washingtonian‘s July 2018 issue.
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Anne-Marie Slaughter looked exhausted.

It was late summer 2017, and for the past week her Washington think tank had been at the center of a national media scandal, beginning with an embarrassing New York Times story about her firing of a certain employee. Slaughter, the president and CEO of New America, had been vacationing in Italy when the news broke. Now she was back, about to confront her bewildered organization at an all-staff meeting and to try to do some damage control.

The ousted staffer, Barry Lynn, was a critic of big tech companies and headed Open Markets, a New America program on corporate power and monopolies. Earlier in the summer, he had gone out of his way to praise the European Union for fining Google $2.7 billion for antitrust violations.

The chairman of Google’s parent company at the time, Eric Schmidt—who, along with his foundation and Google, had by that point donated nearly $20 million to New America—was not pleased, Lynn told the Times, and called Slaughter to say so. Lynn was informed that his actions had endangered the institution, and he was ultimately fired.

The debacle raised all sorts of questions about New America’s coziness with corporate funders, and as staffers gathered in the conference room—across the lobby from the “Eric Schmidt Ideas Lab”—they were impatient for answers. Many worried that the think tank’s intellectual integrity had been compromised, and they feared for their reputations. What would happen the next time someone’s work ran crosswise with the interests of a big donor?

Instead of stanching the anxiety, Slaughter stoked it. According to a recording of the meeting, she said that while she recognized that the standard in journalism was never to show sources what you were writing, New America’s “norm can’t be that. We’re an organization that develops relationships with funders. And you know, these are not just black boxes; they’re people. Google is a person, the Ford Foundation—these are people. . . . And particularly when they give you money, which is really a nice thing . . . basic courtesy I think requires—if you know something really bad, you say, ‘Here’s a heads-up.’ ”

Things spiraled from there. Slaughter insisted that Lynn left not because he had criticized Google but because of the non-collegial way he’d handled himself. Many couldn’t believe the contradictory responses they were hearing. “The whole spectacle left me feeling really sick to my stomach,” recalls an employee who later left the organization. “It became clear they were going to respond to this ordeal with a whole lot of bureaucratic whitewashing.”

Founded at the height of the Nasdaq boom, New America was meant to be an antidote to other Washington think tanks—a young, nimble provocateur that would dispense with convention and birth fresh ideas. Nearly two decades later, the organization, which now employs more than 250 people, is casting about for relevance in a hyper-partisan era, according to interviews with more than three dozen current and former staffers, many of whom wanted anonymity for fear of retribution in the tight-knit DC policymaking community. In a way, it’s a symbol of an entire Washington industry—policymaking—that’s under pressure to fund itself without making ideological or ethical sacrifices. If the Open Markets episode became a public-relations debacle, it also alienated a swath of the organization and exposed how much New America has outgrown its earliest ambitions.

* * *

In Washington’s ideas marketplace, New America was disruptive long before that word became a cliché. In 1999, Ted Halstead, an ambitious 30-year-old who’d already founded an environmental think tank in California, convinced media titan Bill Moyers to back a new kind of research institute. Halstead’s pitch: Washington’s think tanks were known for being captured by their donors, hobbled by bureaucracy, and too partisan—what this town needed was a policy shop that would occupy, as Halstead liked to call it, “the radical center.”

Halstead and his cofounders saw New America as an amalgam of bipartisan, nonpartisan, and post-partisan. They had a penchant for economic populism and a distrust of the status quo. “The whole point of it was to have a welcoming place for intellectual misfits, with the theory that sometimes misfits know what they’re talking about,” says Phil Longman, a longtime employee.

New America established different policy centers as well as a “fellows” program for relatively unknown twenty- and thirtysomethings who would plant their ideas in the mainstream press—a launching pad for the next generation of public intellectuals. Jonathan Chait, a prominent liberal writer for New York magazine, started there at age 26. Other early fellows included Jedediah Purdy, today a Duke law professor, and Jacob Hacker, now a political theorist at Yale.

The founders were just as insistent that their organization’s infrastructure be innovative, fashioning it after the New Economy businesses of the era: agile, decentralized, and aggressively lean. Program directors raised their own funds and paid a fraction of their budget to the larger organization. The vibe was entrepreneurial, says Ray Boshara, who joined in the early 2000s and later became a vice president: “Every other organization I had worked for had all these centralized functions. New America had this idea where we can hire all these people who can do their own thing.”

Within a few years, the think tank’s fellows were regularly appearing on the nation’s most elite op-ed pages, liberal and conservative alike, while its policy experts pushed out new ideas such as child savings accounts. Donors, meanwhile, were clamoring to become patrons of the iconoclastic upstart. Here again, New America differentiated itself by corralling money from a new source: Silicon Valley.

Up to that point, tech entrepreneurs out west had largely shied away from DC and its messy politics. “But the government is no longer ignoring us, so we have to get organized,” Eric Schmidt, then CEO of the software firm Novell, explained at the time. In joining New America’s board of directors, Schmidt told the New York Times he didn’t necessarily expect the think tank to champion Silicon Valley’s agenda. As he put it, “The ideas that come out may well include some I might not agree with.”

After Ted Halstead stepped down in 2007, New America tapped Steve Coll, a former managing editor of the Washington Post, to succeed him. The choice adhered to the organization’s taste for the unconventional: No other think tank in town had a working journalist at its helm.

The winner of two Pulitzer Prizes, Coll made New America an even more attractive place for writers and news outlets to affiliate with. But a few of its original ideals began to get obscured during his tenure.

In its earlier days, while New America did accept a small percentage of donations from corporations and their foundations, its leaders were generally leery of getting too friendly with businesses. “Walmart tried to give me a million dollars, and we ended up saying no,” Boshara recalls. “It was intriguing because we’d have access to data we otherwise wouldn’t, but I remember talking to Ted about how it might compromise our brand and independence.” Coll projected a similar reticence. “As I remember it, the consensus was that we should remain wary of corporations,” he says.

After 2009, however, the think tank began landing US government contracts, including millions of dollars’ worth of work from the State Department and the US Agency for International Development to help develop covert wireless networks for dissidents in Iran, Syria, Libya, and Cuba. Given that the organization had long prided itself on not being another Beltway bandit feeding off federal agencies, this shift disturbed some who worried that it signaled mission drift.

“I think government dollars automatically change the character of an institution,” says the Atlantic’s Steve Clemons, one of New America’s first employees. “I was opposed completely, entirely, 9,000 percent. It dumbs down institutions, whether people want to believe it does or not.”

By 2012, New America’s nonpartisan identity would come under strain, too. That year, an internal civil war broke out over Fix the Debt, a high-profile campaign that took a hard-line position on deficit reduction, calling for cuts to Medicare and Social Security.

The campaign’s co-chairs were a bipartisan duo: Democrat Erskine Bowles, a chief of staff in the Clinton White House, and former US senator Alan Simpson, a Republican. In one sense, it was the fullest expression of the think tank living out its dream as a home for ideas of all stripes. One day you might have a staffer from New America’s economic-growth program, which advocated for more federal infrastructure investment, up on Capitol Hill making a pitch about major public financing. The next day, a representative of Fix the Debt might say, “We can’t afford to do anything.”

But in reality, the big tent created complications. Fix the Debt was an enormous publicity generator for New America and was among its biggest moneymakers. The majority of its funders, though, were Republicans, including Wall Street tycoon Pete Peterson. And that caused liberals in the organization to blanch at its association with the right. Board member Bernard Schwartz, a major liberal donor who backed both the economic-growth program and nearly all of the fellows program, became so uncomfortable that he cut ties with the think tank. Eventually, Fix the Debt and its parent program parted ways with New America, too. “Competing pots of money and the political fashions of the day created an incoherent organization,” says one former staffer.

As much as the think tank professed to champion the “radical center,” in practice the mantra had shown its limits.

* * *

When Slaughter became CEO in 2013, the mood inside New America turned jubilant. A former State Department official under Hillary Clinton, she had earned a national following after her buzzy 2012 Atlantic cover story about work/life balance, “Why Women Still Can’t Have It All.” Staffers were also excited that Slaughter—a former Princeton dean—arrived with serious academic credentials.

But she inherited some serious organizational dysfunction. Building up the organization’s administrative capacity hadn’t been a priority, even as New America had expanded. Ironing out the infrastructural kinks would be her big test.

One of Slaughter’s first orders of business was moving New America from its modest downtown headquarters to a building a block from the White House. The space had all the amenities of a DC power player: a wrap-around roof deck with views of the Mall, trendy teal accents, and sleek design. The upgrade of 20,000 square feet raised some eyebrows internally, but Slaughter stressed that the extra space was essential. “It embodies who we are and where we want to go and inspires us to get there,” she declared.

Soon, like other think tanks in town, the institution would confront new ethics challenges. Five months into Slaughter’s tenure, a New America policy analyst published a blog post criticizing a partnership between Comcast and an online-education website. Despite objections from New America program directors, according to an e-mail, Slaughter allowed a senior VP at Comcast to write a defensive and self-congratulatory response in the think tank’s weekly newsletter. “That was one of the first portraits many of us had of Anne-Marie’s reflexes and instincts when she’s put in a position that requires confronting corporate power in some way,” says a former staffer. Fuzz Hogan, New America’s spokesman, says the organization “failed to get comment from the subject of a story [Comcast] so the editorial team determined a piece in response [by Comcast] was the most effective and engaging solution.”

Employees would get another portrait the next year when a New America fellow named Steve LeVine was reporting an exposé on Sakti3, a battery company. Its CEO called Slaughter to broach the idea of funding New America but also voiced concerns about LeVine’s reporting. Afterward, Slaughter went to LeVine’s editor to relay the CEO’s objections. As word of the conversation spread, staff felt that a line had been crossed. Slaughter apologized to LeVine for interfering with the story.

Slaughter’s political alliances also became news, in silly as well as serious ways. In 2015, four months after Donald Trump decided to run for President, Slaughter and a colleague met Ivanka Trump at an event in DC. After chatting, Trump asked the women for their shoe sizes so she could send each a pair of boots from her fashion line. They obliged, and when the boots showed up in the mail, Slaughter and her colleague took them home.

A year later, just before the election, WikiLeaks released e-mails revealing that Slaughter had been collaborating informally with Hillary Clinton’s campaign. The e-mail traffic showed Slaughter trying to persuade New York Times columnist Thomas Friedman that the uproar around Clinton’s private e-mail use was overblown and that “everyone” Slaughter knew at State also used private e-mail.

“Tom, I’m not working directly with Hillary’s folks; I can’t, given my position as head of New America. So this reach-out is on my own initiative,” she had written. Friedman told her Clinton’s e-mail situation still didn’t “sit right” with him. Slaughter forwarded their entire exchange to three senior Clinton campaign advisers. “Fyi from Tom F—not great, but useful to know,” she wrote.

Embarrassing as the so-called “Ivanka boots” episode was, at least the tarnish of that faux pas was internal—more of an inside joke. The WikiLeaks incident, though, mortified a number of staffers. It’s not verboten for a think-tank CEO to advocate for a political candidate, but New America had long prided itself on its nonpartisan stance.

As it was, stories were circulating that their boss was gunning for a post in a Clinton White House and grooming their think tank for Hillary’s presidency. Since Slaughter took over, more than a dozen former Obama administration appointees have joined the ranks. A couple, including Cecilia Muñoz, Obama’s top domestic-policy adviser, are among New America’s VPs.

New America “used to be a more accepting place of challenging ideas outside the mainstream,” says a right-leaning researcher who left in 2017. “Whatever tolerance existed is absolutely no longer there. It’s not even about being conservative, but it’s about whether you’re allowed to be outside of this increasingly narrow Obama-coalition thing.”

“We’re not a government in waiting,” says Peter Bergen, a VP. “It’s a big differentiator for us and continues to be.”

Phil Longman, who worked at New America for 18 years until last summer when he departed with Lynn, says you could see the organization watering down its unorthodox brand through its annual retreats. They used to be “freeform” gatherings attended by staff and board members, “punctuated by highly competitive rounds of touch football and also a fair amount of drinking,” he says. “But starting about ten years ago, these fellows retreats gave way to highly formal, scripted sessions in which fellows, if they were allowed to talk at all, were asked to put on dog-and-pony shows for would-be donors. The most original and iconoclastic thinkers were generally left off the program because, well, their ideas were ‘unfundable.’ Eventually, if you weren’t ‘fundable,’ you were gone.”

***

Over time, a level of anxiety developed in some corners of the organization, clouding the excitement that had marked Slaughter’s hiring. In particular, some worried about the organization’s financial footing.

For one thing, New America had beefed up its administrative teams, adding staff in fundraising and other areas and expanding the organization’s central bureaucracy, a turnaround from its lean beginnings. The number of staffers earning more than $100,000 in reportable compensation jumped from 29 in 2014 to 49 by 2016, according to tax filings. Slaughter earned $535,000 in 2015, her salary increasing 27 percent a year later to $677,000. (The president of the Center on Budget and Policy Priorities, a think tank with comparable revenues, took home $242,000 in 2016.)

There was also the cost of the upscale new DC headquarters. According to financial audits, New America reported rent expenses of $1.3 million in 2014, the last full year it was in its old building, while rent expenses for the new space amounted to $3.3 million in 2016.

Program directors were being asked to hand over more money toward fixed costs. “The culture has really shifted in major ways over the last five years, from a place where the center supports the programs to one where the programs support the center,” says Sascha Meinrath, a former New America vice president who led its tech-policy program from 2008 to 2014.

While some level of administrative growth is necessary to manage an expanding organization, many have had trouble accepting what they see as outsize ambitions. At the all-staff meeting last September, one employee asked Slaughter if it was a mistake to relocate to the new building. “It’s not putting pressure on our fundraising, and we had to move,” she responded.

It turns out some of the fear may not necessarily have been unfounded. According to internal budget documents, as the organization laid out its 2017 budget, it was seeing red. Revenues had been jumping, from $14 million in 2008 to $38 million by 2016, according to its public tax filings. But so had expenses. Going into 2017, New America was privately forecasting that expenses would badly exceed revenue, leading to a projected drop of $11 million in net assets. Not helping matters was that the organization has no endowment.

Slaughter and her team downplay the concerns, stressing that New America ended up reducing its central-functions budget and exceeding its fundraising goal in 2017. “Nearly doubling revenues means a lot of people have confidence in you,” Slaughter told me this past winter. “It means foundations and individuals are investing in you, so to me that’s the most important metric.”

But it’s not hard to see how anyone in this position wouldn’t have been keen to alienate a big donor.

***

The souring between Slaughter and Barry Lynn began in mid-2016. Lynn’s Open Markets program, which studied tech giants such as Amazon and Facebook, was organizing a conference where Democratic senator Elizabeth Warren would deliver a keynote on the drawbacks of corporate concentration. Slaughter and the think tank’s chief fundraiser, Meredith Hanley, grew increasingly alarmed by the prospect.

“Just THINK how you are imperiling funding for others,” Slaughter e-mailed Lynn days beforehand, emphasizing that they were “in the process of trying to expand our relationship with Google.” New America had recently increased its donations from big business; 12 percent of revenues came from corporations in 2016, up from 5 percent in 2014.

Slaughter demanded in an e-mail that Lynn provide her with talking points to explain to Google why New America hadn’t given it more notice about the conference. Lynn wrote back that the event had been announced publicly and that it had never been standard practice to alert companies about forthcoming events or articles.

That episode ended in a détente. But then Slaughter lost patience with Lynn for good last summer after the EU nailed Google on antitrust violations and Lynn issued his laudatory statement. The release caught the attention of Politico, which cranked out a story noting the strange-bedfellows situation—New America cheering the punishment of a company whose former chairman, Schmidt, was New America’s chairman emeritus.

According to e-mails, Slaughter informed Lynn he was being fired for his “repeated violations of our institutional norms and values concerning notice and cooperation when things that one program does affects other programs.” In other words, not giving a sufficient heads-up to colleagues about what his program was doing. Slaughter said she’d give Lynn two months to quietly spin off his Open Markets program, along with its eight full-time employees: “We will also agree on a common narrative on why this is happening that involves no disparagement by us of you or by you of us.”

But Lynn wasn’t having any of it—he went to the Times with the story, and the drama spilled into public view.

***

By the time Slaughter returned from her trip to Italy and convened her staff meeting, many employees were not only bewildered—they were embarrassed by their organization’s bumbling, defiant response.

“This story is false,” Slaughter had tweeted the morning the article was published. Several hours later, she tweeted that the “facts are largely right” but the “interpretation is wrong.” After getting blasted on social media for the vague and tone-deaf responses, she issued a full statement two days later, asserting that Lynn had not been fired because of pressure from Google and apologizing for using Trumpian rhetoric to discredit the Times.

Slaughter also pointed to a forthcoming book by one of its then fellows, Franklin Foer. World Without Mind: The Existential Threat of Big Tech argues that Silicon Valley poses a threat to civil society.

The invocation took Foer by surprise. A few months earlier, as he’d been preparing for the book’s release, he’d sensed the think tank was backing away from it. First, he says, the organization informed him that his New York book event would no longer be primarily hosted by New America and that the viewpoints represented on the panel would need to be “balanced.” Foer had attended many other New America book events and knew “balance” was not a typical requirement for what are mainly celebratory events for fellows. Still, he agreed to the conditions.

“But after the fact,” he says, “I learned that the development officer, Meredith [Hanley], had a meeting where she freaked out about the prospect of my book causing blowback for New America from Google and was putting pressure on the fellows program to try to somehow dampen their association with it.”

Then came the Open Markets brouhaha, and suddenly, Foer says, “after running away from my book, they started to run towards it in an effort to launder their reputation.” (Foer now sits on the board of the Open Markets Institute, Lynn’s splinter organization.) A spokesman for New America says, “The people who did attend the meeting Frank heard about secondhand have a different recollection, but the fact is we like Frank, we like his work, we funded the writing of his book, and we promoted it heavily. We believe it is critical to the conversation.”

It’s not as if New America was alone in its interactions with corporations. Brookings and others have been called out in recent years for alleged coziness with funders. For its part, New America has said it doesn’t allow donors to influence its work. “We have never had an instance of a funder shaping what we do,” Slaughter told her staff in September.

That month, the think tank’s board hired a management consultant named Jon Huggett to interview nearly 40 people affiliated with the organization. He found that most employees he spoke to felt confident about the organization’s intellectual independence and that Lynn’s departure wasn’t seen as due to funder pressure. “Barry behaved rationally, for himself,” said one. In the end, Slaughter retained the backing of the board—one of its co-chairs at the time suggested in a letter to staff that Lynn had used New America as a scapegoat to advance his own interests.

The organization also conducted a separate, internal review around its funding and transparency practices. As a result of both efforts, it is now disclosing dollar amounts and funding purposes for each of its donors, not just who gives. These changes have earned the think tank praise and higher scores from transparency watchdogs.

Less clear is whether staffers owe donors advance warning about work they might not like. According to Kevin Carey, the VP who led the internal committee, the organization chose not to adopt an official policy on the matter. For some, this left questions around Lynn’s firing still open to interpretation, as well as ambiguity over whether higher-ups could interfere with their work directly or indirectly through a culture of self-censorship. Eventually, several fellows left.

Huggett, the consultant, meanwhile, found that the crisis opened other wounds and that general morale had been clobbered. He told the board he “heard more reasons to back New America from two funders than [from] 30 staff.” Few could speak of a shared mission, and others raised concerns about rising costs and dysfunctional company culture. “We are reactive and opportunistic,” a staffer told Huggett. One founder said: “Money, not mission, drives New America.”

***

So how do you redefine a nonpartisan think tank in a hyper-partisan age? James Fallows, a longtime board member, says New America is working to figure that out: “You can’t just split the difference between sensible Democratic positions and sensible Republican ones anymore, as you still could do in many areas in the 1990s. The room for finding common ground in Washington has been cut away.”

Whereas it used to play up its distinctiveness, the organization looks more like a follower these days. Its leaders are working on expanding its influence beyond Washington with on-the-ground partners in local communities and “what works” research and events—a popular, apolitical movement embraced by other policy institutes and foundations over the last five years.

Some still feel anxious about the think tank’s finances and future. The organization has had four CFOs in the past five years, and there was an abrupt leadership shake-up on the board last November. While New America has had continued success raising restricted funds for program-specific initiatives, like most nonprofits it has a harder time raising unrestricted dollars. In 2016, an internal committee was tasked with reviewing the organization’s finances, out of recognition, they said, that winning more program grants does not necessarily leave enough money to cover the organization’s fixed costs. Their recommendations to the board included growing more policy programs as well as increasing New America’s corporate-donor pipeline by 30 to 40 prospects annually. (In 2017, 8 percent of funding came from big business.) While the committee noted that the organization was staying afloat thus far by increasing board support and netting big gifts, this was “not a long-term strategy.”

New America’s leadership chalks up the criticism and institutional snags to the inevitable growing pains of expansion. It’s “going through the natural life cycle of any organization,” says Bergen. Think about it as you might a college evolving into a university with a collection of professional schools, Fallows suggests: “A bigger organization just means more complexity of everything.”

Right-sizing may depend on a degree of openness that some believe has been missing. New America has a “social compact” stating that it encourages “fearless feedback” and “frank conversations”—but the management consultant heard varying comments including “I raise concerns and am branded as a trouble maker” and “We do stifle internal critics: Sometimes we fire them.” Moreover, despite New America’s stated values around transparency, when the think tank negotiates severance packages, it includes non-disclosure and non-disparagement agreements—something few people can afford not to sign.

The organization says it has been working on implementing recommendations put forth by the consultant, including writing clearer policies around collegiality. Huggett also suggested that New America establish a committee on “reputation and risk” and make clearer to donors that it will maintain editorial independence, both of which it has done. When asked about the institution’s expectation for notifying funders with a heads-up about things that might upset them, a practice Barry Lynn violated, Slaughter insists there was never a rule around that. “The thing I will say is I love Barry’s work. I’ve cited it and I believe in it,” she adds. “By far the worst part of everything that happened is we lost that work.”

New America has grown in size and scale under Slaughter. One of her goals was to help Washington be more in touch with solutions-oriented enterprises outside the Beltway, and she has positioned New America to try to support innovators in cities and states and connect them to one another. Last year, the think tank welcomed its first class of public-interest technology fellows with data-science expertise, launched a master’s program in global security with Arizona State University, and opened New America Indianapolis, one in a series of local initiatives. Slaughter says she’s proud of helping diversify the organization and of building “a living, breathing network . . . composed of partners and projects and institutions and people all around the country.”

Slaughter has committed to at least five years with the organization, and her half-decade anniversary is coming up this fall. Whether she stays or moves on, the head of the think tank founded to innovate will have to tackle some old-fashioned problems. As one employee interviewed by the management consultant put it: “My biggest hope for New America is to figure out what it wants to be when it grows up.”