STATE OF COLORADO BOARD OF EDUCATION 201 East Colfax Avenue, #506 Denver, CO 80203 In Re: Appellant: Vega Collegiate Academy District/Appellee: Aurora Public Schools (Adams?Arapahoe School District A. BOARD USE ONLY A Attorney for Adams?Arapahoe School District 28-J a/k/a Case Number: Aurora Public Schools: Brandon Eyre Of?ce of Legal Counsel Aurora Public Schools 15701 E. Ave, Suite 100 Aurora, CO 80011 Ph: (303) 326-1800 Fax: (303) 326-1994 bievre@aps.kl2.co.us OBJECTION TO NOTICE OF APPEAL Adams?Arapahoe School District 28-J a/k/a Aurora Public Schools (?District? or through its attorney, Brandon Eyre, submits this Objection tothe Notice of Appeal submitted by Vega Collegiate Academy 1. INTRODUCTION Vega was approved as a charter school by the District and has been operating its school throughout the 2017?2018 school year. Pursuant to contract Vega must receive approval from the Superintendent prior to relocating their facilities. Vega submitted a request for approval which was denied by Superintendent Munn. Vega is now trying to appeal that decision as a ?unilateral imposition of conditions on a charter applicant? under Colorado Revised Statutes et. seq. This is an erroneous assertion in that this is a contract dispute governed by C.R.S. 22-305-1075, governing dispute resolution, not a unilateral imposition of a condition. In addition, the Vega charter contract includes a negotiated dispute resolution clause which Vega has failed to exercise. Because Vega has failed to exercise the negotiated dispute resolution process set forth in the charter contract and because it has failed to comply with the preliminary requirements mandated by C.R.S. 22-30.5-107.5, prior to appealing this matter to the State Board of Education, the State Board of Education does not currently have jurisdiction to hear this matter. II. ARGUMENT Under the Revised Administrative Policy on Charter School Appeals, the State Board has ten days to accept or reject the appeal based. in part on whether the appeal meets the legal standards set forth in the Charter Schools Act and if the State Board has Jurisdiction. See Section EU). In this case, the Vega appeal does not meet those standards. In order to bring an appeal under C.R.S. 22305?108, Vega must establish two main elements. First that this was a unilateral imposition of a condition on the charter school and that the action was taken by the APS Board of Education. They cannot establish either element. At issue in this appeal is the implementation of a negotiated clause in the charter contract. The applicable provision of the charter contract states: 7.4.4 [Vega] shall obtain the School District?s prior consent to the terms of any lease of premises to be used for educational purposes, which consent shall not be unreasonably withheld, that is entered into after the effective date of this Agreement. Should [Vega] move from its present site, it must gain prior approval from the Superintendent, which approval shall not be unreasonably withheld, to its proposed site. The School District acknowledges that in the process of changing locations, if this occurs, [Vega] may be required to operate at two sites until it is able to consolidate at one site. If [Vega] operates at two sites, [Vega] agrees to the following conditions: the two locations must be adjacent; for CDE reporting purposes, one building code must be used and one principal must be reported; and, one mailing address must be used for the adjacent sites. The exercise of discretion fully negotiated by the parties and memorialized in the charter contract cannot be deemed to be a unilateral imposition of a condition for the very fact that it was fully negotiated and agreed to. The decision of the Superintendent not to approve a change in facilities is a dispute ?concerning governing policy provisions of the school?s charter contract? as envisioned by C.R.S. 22605?1075, and is the exact type of scenario which prompted the enactment of C.R.S. 22?305? 107.5. Second, absent ful?lling the dispute resolution requirements of C.R.S. 22-30.5-107.5, an appeal under C.R.S. 22605-108, and under the applicable administrative rules is limited to decisions by the local school board. In this case, the local school board did not take any action. By the negotiated contract term set forth above, that determination rests with the Superintendent. Again, the administrative management of a contract is the exact purpose for which C.R.S. 22-30.5-107.5, was enacted, and absent compliance with the process set forth in that statute and in the accompanying administrative rules set forth in Section B, the matter is not ripe for review by the State Board of Education. In addition, Vega agreed to a speci?c dispute resolution process in its charter agreement. It states: 12.9 Dispute Resolution. In the event any dispute arises between the School District and [Vega] concerning this Contract, including without limitation the implementation of or waiver from any policies, regulations or procedures, such dispute shall ?rst be submitted to the Superintendent or designee for review. Thereafter, representatives of the School District and [Vega] shall meet and attempt in good faith to negotiate a resolution of the dispute. In the event these representatives are unable to resolve the dispute informally pursuant to this procedure, the party that initiated the action in the ?rst instance shall inform the other party of an intent to invoke C.R.S. Within 30 days after receipt of written notice, the parties shall have agreed upon an independent mediator. If the parties are unable to agree upon a mediator within that time, the moving party shall obtain a list of five names from the Judicial Arbiter Group, Denver, Colorado, and submit them to the other party, who shall strike one, return the list to the moving party, and so forth until one name remains. The remaining person shall be selected as the mediator. This striking process shall be completed within ten (10) days after delivery of the list to the non-moving party. The mediation shall be scheduled and concluded within 120 days of the moving party's written request for mediation, with ?nal written ?ndings entered by the mediator and served on both parties within said 120 day time frame. The mediation process shall be closed to the public and all information submitted during mediation shall be confidential to the extent provided by law. Participation in the dispute resolution process shall constitute neither an admission nor denial of State Board of Education jurisdiction over the dispute. If the parties are unable to resolve the dispute, the mediator will issue a con?dential recommendation to the parties. The District Board shall act to accept, modify or reject such recommendation and shall release the mediator?s recommendation, within the meaning of on the date of such Board Action. Participation in the dispute resolution process shall constitute neither an admission nor a denial of State Board of Education jurisdiction over the dispute. Vega is now trying to circumvent its contractual obligation to enter into the described dispute resolution process it agreed to while negotiating its charter contract. They should not be allowed to do so. HI. CONCLUSION Based on the statutes and regulations set forth above it is clear that Vega has erroneously asserted a charter appeal under C.R.S. 22-305-108, without ?rst satisfying its obligations under its charter contract and the legal requirements of C.R.S. 22-30.5-107.5, and its associated regulations. We ask that this appeal be rejected until such time as Vega has complied with its legal and contractual obligations to enter into good faith dispute resolution. RESPECTFULLY SUBMITTED this 8th day of February, 2018 Brandon Eyre Adams?Arapahoe School District 28.] Certi?cate of Service Pursuant to the Colorado State Board of Education?s 2008 Revised Administrative Policy on Charter School Appeals, Paragraph C.2, on February 8, 2018 this Objection to Notice of Appeal has been ?led with the Colorado State Board of Education at the following email address. In addition, three (3) hard copies will be sent by U.S. Mail to the following physical address: Colorado State Board of Education 201 Colfax 506 Denver, CO 80203 A hard copy will also be sent by U.S. Mail to the following physical address: Tim Farmer, Esq. The Law Of?ce of Brad Miller 5665 Vessey Road Colorado Springs, CO 80908 An electronic copy was also sent to the following: Tim Farmer, Esq. tim@bradmillerlaw.com ?wnx B?ndon Eyre, Legal Counsel