Attorneys and Counselors at Law

Patricia Matthews office: (SOS) 473-3020 Susan Barger Fox

pmatthews@matthewsfox.com fax: (SOS) 474-3727 sfox@rnatthewsfox.com

October 7, 2021

Via Federal Express (Full Board) and Individual Email

Mr. David Shoup, President
Mr. Simon Rubio, Secretary
Mr. Robbie Chacon
Mr. Ron Singleton
Mr. David Lewis
Carlsbad Municipal Schools Board of Education
408 North Canyon Street
Carlsbad, New Mexico 88220

Re: Material Violation Assessment related to Jefferson Montessori Academy Election

Dear Honorable Members of the CMS Board of Education:

This firm represents Jefferson Montessori Academy ("JMA"), a public charter school authorized by the
Carlsbad Municipal Schools Board of Education ("Board"). I am responding to a September 28, 2021, letter
sent by Superintendent Gerry Washburn to Ms. Deanna Weston-Helmer, president of the JMA Council of
Trustees ("Council") and Ms. Kelli Barta, Head Administrator of JMA. Dr. Washburn's letter is a notice of
a "material violation" of the charter school's contract with the Board ("Contract") based on Dr. Washburn ' s
interpretation of the "Bylaws of the Jefferson Montessori Academy Council of Trustees," [last amended April
20, 2020] ("Bylaws") as they pertain to Council elections. Please see pertinent sections of the Bylaws
attached.

On September 22, 2021, Dr. Washburn sent a letter to Ms. Barta directing her to modify the Council's election
procedures based on his interpretation of the Bylaws to allow an ineligible candidate to participate in the
Council's September 27, 2021 elections. This "directive" was based on a parent complaint (not the candidate)
about the election committee's determination of the candidate's ineligibility. Notwithstanding, Dr.
Washburn's "directive" JMA proceeded with its election according to its interpretation of its own Bylaws.
Subsequently, Dr. Washburn sent a letter on September 28, 2021, citing JMA for a "material violation" of
the school's Contract because, according to Dr. Washburn, JMA had not complied with his interpretation of
JMA Bylaws. He did not refer to any provision of a charter contract, nor any law that reveals that JMA's
interpretation of its own Bylaws indeed violated a statute or regulation. Further, he offers no contract
provision that supports a conclusion that even if JMA had violated its Bylaws, which it did not, said violation
would constitute a "material violation" of the Contract. A material breach is a breach that goes to the
fundamental purpose of the contract and one that would defeat the reason the parties entered the contract in
the first instance. Famig/ietta v. Ivie-Miller Enterprises, Inc., 1998-NMCA-15~17.

Before Ms. Barta and Ms. Weston-Helmer received Dr. Washburn's September 28, 2021 letter (received on
September 29, 2021), Ms . Barta responded to the September 22, 2021 letter explaining why JMA disagreed
with the Superintendent's directive to change the rules of JMA's elections. See Barta letter to Washburn

1925 Aspen Drive, Suite 301A . . Santa Fe, New Mexico 87505
Members of the CMS Board of Education
October 7, 2021
Page 2 of3

dated September 29, 2021 attached. After receipt of Ms. Barta's letter, Dr. Washburn sent an email stating
that he stood by his analysis and imposition of a "material violation" as set forth in his letter dated September
28, 2021 and insisted that Ms. Barta report the violation in JMA's charter renewal application. Washburn to
Barta dated September 29, 2021 attached. Because a material violation can be consequential to the-Board's
renewal decision, i.e., it can be a reason to deny renewal, the Council asked me to prepare a formal rebuttal
to Dr. Washburn's determination that a material violation occurred. It is apparent from Dr. Washburn's
notice that he intends to use the alleged material violation as defined in NMSA 1978, §22-8B-12(K)(l), as a
reason to deny JMA's charter contract renewal.

A brief summary of the issue that gave rise to this matter will provide the Board necessary context for
deciding whether JMA followed its Bylaws and whether a material violation actually occurred as proffered
by Dr. Washburn, The Council commenced its election procedures pursuant to Article Ill of its Bylaws by
notifying its community of the upcoming election one month before the scheduled election proceedings. See
Section 3. 1, Bylaws. Accordingly, individuals were required to submit their letters of interest by September
20, 2021. The public forum for candidates was held on September 21, 2021 and absentee voting commenced
the next day, on September 22, 2021. Thus, the ballots had to be available for voting at least by September
22, 2021. The official day for in-person voting according to the Bylaws is the fourth Monday of September
each year; this year September 27, 2021. See Bylaws at Section 3.1. The election process is run by an election
committee selected by the Council that includes individuals who are not running and a member of the Council
that is not up for reelection.

This year, one of the individuals interested in running for a seat on the Council submitted his letter of intent
by the deadline. However, according to Section 2.4 of the Bylaws, as the husband of an incumbent officer
of the JMA PTA/PTO, he was ineligible to serve on the Council and had not cured that ineligibility by the
date of the candidate forum, September 21 . The Bylaws provide:

QUALIFICATIONS OF TRUSTEES: By way of minimum qualifications, all trustees shall be

individuals interested in and supportive of charter schools and, particularly, of Jefferson Montessori
Academy. Council ·of Trustees may be community members or parents/guardians whose children
attend the school. Members from the community at large may submit letters of intent to run for the
elected community member/parent positions.
To prevent conflicts of interest:
Jefferson Montessori Academy teachers and staff, and direct family of teachers and staff,
may not serve as trustees.
Jefferson Montessori Academy PTA/PTO officers and their direct family may not serve
as trustees.
CMS employees or board members may not serve as trustees.

Emphasis added. Thus, the above-referenced individual was deemed ineligible by the election committee
who were charged with running the election and he was notified on September 21 , 2021 that his name would
not appear on the ballot as contemplated by the Council's Bylaws.

In Dr. Washburn's September 22, 2021 letter, he asserted that the Bylaws should be interpreted to mean that
an ineligible candidate should have been permitted to be listed on the ballot and allowed to cure his
ineligibility after he won the election. Curing the eligibility defect would have required the candidate's
spouse to resign. Obviously, if the candidate's spouse chose not to resign, the Council would have to remove
the new elected member creating a vacancy. According to JMA's Bylaws, if a vacancy occurs between
elections, the Council chooses the member's replacement. See Section 4.1. Thus, JMA constituents and
~ta~e~1olders are be denied ~he right to choose from a slate of eligible candidates if and when an ineligible
mdtvtdual 1s allowed to be ltsted on the ballot. It is significant that the PTA/PTO president was aware of the
eligibility requirements and resigned her position in advance of submitting her letter of intent.
Members of the CMS Board of Education
October 7, 2021
Page 3 of3

Notwithstanding, Dr. Washburn directed the Council to follow his interpretation of the Council's own
bylaws, insisting that the ineligible candidate be listed on the ballot and permitted to rectify his ineligibility
after the election. JMA chose to follow its Bylaws and held its election without listing the individual on the
ballot. Thereafter, Dr. Washburn issued his notice of a "material violation."

According to the Charter Schools Act, "[a] charter school shall be governed by a governing body in the
manner set forth in the charter contract. .. " NMSA 1978, §22-88-4(B)(emphasis added). Dr. Washburn
acknowledges that JMA's Bylaws are incorporated into the school's Contract. As the Charter Schools Act
clearly states, it is the charter school, not the authorizer that determines how the governing body operates.
Unless there is a law to the contrary, JMA is entitled to deference when interpreting its own Bylaws and
deciding how the Council g9verns the school.

Other than Section 22-8B-4(B) there is no statute or regulation that governs how charter schools conduct
their elections. Dr. Washburn cites no legal authority or any provision in JMA's charter contract that permits
the authorizer to impose its interpretation of the school's Bylaws as opposed to giving the Council deference
for interpreting its own election procedures. The Charter School Act express a legislative intent that a charter
school's governing body be responsible for its own operations. See NMSA 1978, §22-8B-4(C)( I) ("A charter
school shall be responsible for: (I) its own operations ... ").

Further, the Council's Bylaws are consistent with the Governmental Conduct Act. Section 2.4 of JMA's
Bylaws excludes PTA/PTO officer' s immediate family members from serving on the Council. This eligibility
requirement, as the Bylaws clarify, is intended to reduce the opportunity for an apparent or actual conflict of
interest. Narrowing the eligible individuals who can to serve on the Council beyond the family-member
restriction in the relevant anti-nepotism statute (NMSA 1978, §22-88-5.3), is clearly contemplated by the
Governmental Conduct Act, which provides, "[n]othing in the Governmental Conduct Act shall be construed
to preclude a state agency or local governmental agency from adopting and publishing ordinances, rules or
standards that are more stringent than those required by the Governmental Conduct Act." NMSA 1978,
§ I 0-16-1 l. l ( emphasis added). JMA is well within its legal authority to determine the election eligibility
criteria as found in 2.4 of its Bylaws.

Because the law contemplates that charter schools are self-governed, the Superintendent's imposition of his
own interpretation of the Bylaws to devise a "material violation" exceeds his authority. Dr. Washburn fails
to cite to any law or provision of JMA's charter contract that the School violated and thus, the determination
of a "material violation" as a ground for nonrenewal, is unsubstantiated. See NMSA 1978, §22-8B-12(K)(l ).

The Council requests the Board to consider this response and its September 29, 2021 letter to Dr. Washburn
when considering the Superintendent's assertion that JMA has committed a "material violation." The
Council welcomes the opportunity to answer any of the Board members' questions and looks forward to
presenting its charter renewal application at a public hearing as set forth in NMSA 1978, §22-88-12(1).

MATTHEWS FOX, P.C.

Digitally signed by Patricia
Patricia Matthews
; Dal!!: 2021.10.07 10:04:34
By: Matthews -06'00'

Patricia Matthews
Enclosures
Cc: Jefferson Montessori Academy - Council of Trustees via email wlenc/osures
Kelli Barta, JMA - Head Administrator via email w!enc/osures
Corina Chavez - Director, Charter Schools Division/PED via email wlenc/osures
Gerry Washburn - Superintendent, Carlsbad Municipal Schools via email wlenc/osures