ELECTRONIC CLASSROOM OF TOMORROW vs. OHIO DEPARTMENT OF EDUCATION Deposition of John Wilhelm August 29, 2016 prompt. precise. professio11/ll. 390 S. Washi ngton Avenue Columbus, Ohio 43215 614. 460.5000 • 800, 229.0675 fax 614.460.5566 www.pri ohio.com • pri@priohio. com
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ELECTRONIC CLASSROOM OF TOMORROW vs. … Wilhelm.pdf · vs. OHIO DEPARTMENT OF EDUCATION Deposition of ... ·3· ·ELECTRONIC CLASSROOM OF· · ·) · · ·TOMORROW ... ·6· ·applicable
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�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
�John WilhelmAugust 29, 2016
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� � � � � � � � � � �JOHN WILHELM�2� �being first duly sworn, as hereinafter�3� �certified, deposes and says as follows:�4� � � � � � � � � � �EXAMINATION�5� �BY MR. LITTLE:�6� � � �Q.�Good morning.�My name is Marion Little.�7� �Can you tell us yours?�8� � � �A.�John Wilhelm.�9� � � �Q.�And Mr. Wilhelm, how are you currently10� �employed?11� � � �A.�I'm a part-time area coordinator for the12� �Ohio Department of Education.13� � � �Q.�Have you had your deposition taken14� �before?15� � � �A.�No.16� � � �Q.�Let me begin, then, by sort of outlining17� �the approach so you're comfortable as we proceed18� �today.�I'll ask you a series of questions.19� �It's important that if you don't understand the20� �question that you ask for a clarification.21� �Sometimes I mumble something, so don't be shy22� �about asking for a clarification.23� � � � � �It's important that you verbalize your24� �responses so the court reporter who's sitting
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�1� �next to your right can make an accurate�2� �recitation of what you're trying to communicate�3� �to us.�4� � � � � �It's also important that you allow me to�5� �finish my question before you begin your answer,�6� �and it's equally important that you be allowed�7� �to finish your answer before I begin my next�8� �question.�If I interrupt you for whatever�9� �reason, please stop and ask for a clarification.10� �Excuse me, please stop and ask to finish your11� �answer.12� � � � � �Likewise, if you need to take a comfort13� �break at any point in time, please let me know14� �and we'll make an appropriate arrangements in15� �that regard.16� � � �A.�Okay.17� � � �Q.�Any questions about the process before18� �we begin?19� � � �A.�No.20� � � �Q.�Did you review any materials in21� �preparing for your deposition?22� � � �A.�Yes.23� � � �Q.�And what did you review?24� � � �A.�Just my last FY11 review and the FY16
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�1� �review.�2� � � �Q.�And what do those materials consist of?�3� � � �A.�The FY11 consists of a form report that�4� �I wrote to ECOT outlining the results of that�5� �FTE review in '11.�And then the first review�6� �from FY16 and the letter that I sent for FY16.�7� � � �Q.�So in addition to the letters that you�8� �would have sent to ECOT, so that I understand�9� �with respect to each of those respective10� �reviews, are there other materials that you11� �would have -- would have fallen in the category12� �of the FYE [sic] '11 review and FYE '16 review?13� � � �A.�I don't understand your question.14� � � �Q.�Sure.�Were there -- for example, did15� �you have a work file or a file that was the16� �documentation that supported the letter that you17� �composed?18� � � �A.�No.19� � � �Q.�Okay.�Other than the letter itself that20� �was sent to ECOT, would there have been anything21� �else that you would have reviewed as part of22� �those materials?23� � � �A.�No.24� � � �Q.�And separate and apart from the two
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�1� �letters that you would have sent to ECOT with�2� �respect to FYE '11 and '16, were there any other�3� �materials you reviewed in preparing for your�4� �deposition?�5� � � �A.�No.�6� � � �Q.�Now, did you speak to anyone in�7� �preparing for your deposition?�8� � � �A.�Yes.�9� � � �Q.�And who did you speak to?10� � � �A.�Legal counsel.11� � � �Q.�Okay.�And was that Mr. Cole?12� � � �A.�Yes.13� � � �Q.�Was there anyone else that participated14� �in that discussion?15� � � �A.�No.16� � � �Q.�And for how long did you speak to17� �Mr. Cole?18� � � �A.�I didn't keep track of the time.19� �Probably four hours.20� � � �Q.�Probably spent -- felt like days, but...21� � � � � �And how long -- how recent was that that22� �you spoke to Mr. Cole?23� � � �A.�Last Friday.24� � � �Q.�Okay.�Was that the first time you had
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
�John WilhelmAugust 29, 2016
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�1� �spoken to Mr. Cole?�2� � � �A.�No.�3� � � �Q.�Okay.�Had you spoken to Mr. Cole on�4� �prior occasions as it related to this case?�5� � � �A.�On the phone.�6� � � �Q.�Okay.�So the meeting that occurred last�7� �week for four hours, was that in person?�8� � � �A.�Yes.�9� � � �Q.�Okay.�And were there any documents you10� �reviewed as part of that preparation?11� � � �A.�That I reviewed?12� � � �Q.�Yes, sir.13� � � �A.�No.14� � � �Q.�Okay.�Or that you were shown?15� � � �A.�Yes.16� � � �Q.�Okay.�And what were you shown during17� �that review?18� � � � � �MR. COLE:�I'm going to object to that19� �and instruct the witness not to answer on work20� �product grounds.21� �BY MR. LITTLE:22� � � �Q.�Can you tell us the number of documents23� �you were shown during your preparation with24� �Mr. Cole?
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�1� � � �A.�Oh, probably four or five.�2� � � �Q.�Okay.�And other than Mr. Cole, have�3� �there been other individuals you have met with�4� �relating to -- in person, that is -- with�5� �respect to this litigation or your deposition�6� �preparation?�7� � � �A.�Yes.�8� � � �Q.�And who -- who would those be?�9� � � �A.�Diane Lease.10� � � �Q.�And when did you meet with Ms. Lease?11� � � �A.�I wasn't prepared to answer that. I12� �think it was probably three weeks ago.13� � � �Q.�Did you review documents with Ms. Lease?14� � � �A.�No.15� � � �Q.�And for how long did you meet with16� �Ms. Lease?17� � � �A.�I'm going to say 10 minutes, 15 minutes.18� � � �Q.�Was that the first time you had ever met19� �with Ms. Lease?20� � � �A.�In person?21� � � �Q.�Yes.22� � � �A.�Yes.23� � � �Q.�Anyone else that you met with in person,24� �in terms of attorneys, with respect to this case
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�1� �or your deposition?�2� � � �A.�There was an attorney at -- present at�3� �the final FTE review.�4� � � �Q.�One of Mr. Cole's colleagues?�5� � � �A.�Yes.�6� � � �Q.�Now, you mentioned -- excuse me.�7� � � � � �Other than what you've described for us,�8� �is there anything else you've done to prepare�9� �for your deposition today?10� � � �A.�No, just thinking through the sequence11� �of events.12� � � �Q.�Did you prepare any notes, for example?13� � � �A.�No.14� � � �Q.�Prepare any type of report or summary of15� �your recollections for anyone?16� � � �A.�No.17� � � �Q.�You described yourself as being a18� �part-time area coordinator.�How long have you19� �had that part-time position?20� � � �A.�Since I started with the department in21� �2008.22� � � �Q.�Now, prior to 2008, you had been a -- a23� �long-term school administrator?24� � � �A.�Yes.
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�1� � � �Q.�And I take it you had retired from�2� �serving as a school administrator prior to 2008?�3� � � �A.�Yes.�In 2008, actually.�4� � � �Q.�And when you started with ODE in 2008,�5� �was your position at that time area coordinator?�6� � � �A.�Yes.�7� � � �Q.�And have you been responsible for the�8� �same geographical areas since you started with�9� �ODE in 2008?10� � � �A.�No.�There -- no.11� � � �Q.�And how has your areas of responsibility12� �changed since 2008?13� � � �A.�The actual geographic area?14� � � �Q.�Yes, sir.15� � � �A.�We had a couple of extra counties for a16� �few years when they were redistricting the area17� �coordinator, and then we went back to the18� �original ten counties that we had -- that we had19� �been serving when I first started.20� � � �Q.�Is your area assigned any type of21� �designation by a letter or number?22� � � �A.�Region 1.23� � � �Q.�Region 1?24� � � �A.�Uh-huh.
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
�John WilhelmAugust 29, 2016
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�1� � � �Q.�And you've always been assigned to�2� �Region 1?�3� � � �A.�Yes.�4� � � �Q.�And if I understand your testimony,�5� �during the course of your tenure at ODE, there,�6� �at one point in time, were additional�7� �counties -- excuse me, additional counties added�8� �to Region 1 and then later subtracted?�9� � � �A.�Right.10� � � �Q.�And Region 1 principally covers what11� �geographical area?12� � � �A.�The northwest corner of Ohio.�There are13� �ten counties starting at the Indiana border in14� �the northwest corner as far over as Lucas and15� �then down.�It's just almost a square block. I16� �could probably name them all, but if you can17� �envision the northwest corner of the state.18� � � �Q.�I don't think it will be necessary for19� �you to name them.20� � � �A.�Okay.21� � � �Q.�But I appreciate the offer.22� � � � � �What -- in terms of a part-time23� �position, how much of your time on a weekly24� �basis is dedicated to serving as an area
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�1� �coordinator?�2� � � �A.�I am supposed to work 1,000 hours a�3� �year.�4� � � �Q.�And I take it that means some weeks it's�5� �40 and some weeks it's substantially less?�6� � � �A.�What I've tried to do, and what I've�7� �been encouraged to do, is work two days one�8� �week, three days the next, or whatever the�9� �schedule would dictate.�There may be weeks10� �you're not needed at all.11� � � �Q.�And as an area coordinator with ODE12� �since 2008, have your job duties remained the13� �same during that entire time period?14� � � �A.�Yes.15� � � �Q.�And how would you describe your job16� �duties?17� � � �A.�We assist the traditional public18� �schools, community schools, and nonpublic19� �chartered schools with any financial questions20� �that they have.�We specifically do -- are21� �responsible for the FTE reviews for the22� �community schools and some auxiliary services23� �reviews for the nonpublic schools, and then24� �general answering of questions that might come
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�1� �up.�2� � � � � �There are several forms that ODE�3� �requires of school districts to complete�4� �regarding special education in foster-placed�5� �students and we assist schools with getting�6� �those forms completed and -- and submitted.�7� � � �Q.�On an annual basis, how many FTE review�8� �for charter schools would you participate in?�9� � � �A.�It varies from year to year.10� � � �Q.�Since 2008, do you have a sense of the11� �gross number of FTE reviews you've conducted for12� �charter schools?13� � � �A.�I'm going to say the average would be14� �about eight per year.15� � � �Q.�And of the eight FTE reviews for charter16� �schools conducted per year since 2008, do you17� �have a sense or a recollection of how many of18� �those would be eSchools?19� � � �A.�In my territory, there are three20� �eSchools.21� � � �Q.�And what are the three eSchools in your22� �territory?23� � � �A.�Ohio Virtual Academy, Findlay Digital,24� �and ECOT.
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�1� � � �Q.�Has Ohio Virtual Academy been�2� �operational within your district since the�3� �commencement of your employment as an area�4� �coordinator?�5� � � �A.�Yes.�6� � � �Q.�And is the same true for Findlay�7� �Digital?�8� � � �A.�Yes.�9� � � �Q.�And since 2008, do you know how many FTE10� �reviews you've conducted of Ohio Virtual11� �Academy?12� � � �A.�One, in 2011 -- 2012.�Excuse me.13� � � �Q.�And since the commencement of your14� �employment with the ODE, how many FTE reviews15� �have you conducted of Findlay Digital?16� � � �A.�Two.17� � � �Q.�And do you recall when those occurred,18� �please?19� � � �A.�Well, they're on the same cycle as -- as20� �ECOT, so '11 and '16.21� � � �Q.�And with respect to ECOT, you would have22� �conducted FTE reviews in 2011 and 2016?23� � � �A.�Yes.24� � � �Q.�The auxiliary service review that you
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� �referenced as one of your responsibilities as an�2� �area coordinator for the traditional public�3� �schools, can you give us a little bit more�4� �detail about what type of involvement or�5� �services that would encompass?�6� � � �A.�Auxiliary services is money given to�7� �nonpublic school districts, but it flows through�8� �the public school district.�They receive a�9� �per-pupil amount of money, and they have rules10� �that they're supposed to follow as to how they11� �can spend that money.�And so we have a12� �five-year cycle where we go out and review, both13� �with the public school, because they're the ones14� �that are fiscally responsible for managing the15� �money, and the nonpublic school, in how they're16� �using the supplies and equipment that they order17� �from the public school.18� � � � � �There's a second pot of money that comes19� �to the nonpublic schools called mandated20� �administrative cost, and we review strictly with21� �the nonpublic school whether they're doing22� �recordkeeping for that money.23� � � �Q.�You also described your duties including24� �assisting traditional public schools.�Outside
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�1� �of the work you're doing with respect to the�2� �auxiliary services review, what other ways do�3� �you assist traditional public schools in a -- in�4� �your capacity as a area coordinator?�5� � � �A.�I would say the biggest is the�6� �involvement with the catastrophic cost program,�7� �as far as time commitments, and the SF-6�8� �program.�Both of these are programs that�9� �involve special education students and money10� �that flows back and forth between school11� �districts if a student is attending one district12� �but is a responsibility of another district.13� � � � � �There's paperwork and -- and forms for14� �them to file to make the money flow from one15� �district to another through the state foundation16� �program, and we assist them in -- in making sure17� �they get that taken care of.18� � � �Q.�Outside of FTE reviews, what involvement19� �do you recall having with ECOT since the20� �commencement of your employment with ODE in21� �2008?22� � � �A.�We're always available when they would23� �call with questions about students that a school24� �district might put a flag on in the system and
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�1� �say this isn't our student, because the money�2� �follows the student in where the district is�3� �located.�4� � � �Q.�And in addition to that example, are�5� �there any other contexts you recall in which you�6� �would have interfaced with ECOT outside an FTE�7� �review context since the start of your�8� �employment in 2008?�9� � � �A.�ECOT files catastrophic costs -- has10� �filed a couple years for catastrophic costs, and11� �I recall assisting them with making sure they12� �got that paperwork in.13� � � �Q.�The -- you made a reference earlier14� �about cycles and you said that Findlay Digital15� �and ECOT were on the same cycle.�Is that the16� �cycle for FTE reviews?17� � � �A.�Yes.18� � � �Q.�And would that be, as you understand it,19� �on a five-year cycle?20� � � �A.�Yes.21� � � �Q.�Would you have -- outside of the22� �five-year review, would you have had any23� �involvement in examining the FTE funding being24� �received by ECOT?
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�1� � � �A.�No.�2� � � �Q.�Now, during the course of 2008 to the�3� �present, have you had the same immediate�4� �supervisor?�5� � � �A.�No.�Ron Heitmeyer was my supervisor�6� �when I first started.�When he retired last�7� �February, technically Abby Dewar -- Alice Dewar,�8� �would have been my supervisor.�She was Ron's�9� �replacement.10� � � �Q.�I'm sorry, what was Abby's last name?11� � � �A.�Dewar, D-E-W-A-R.12� � � �Q.�And Mr. Heitmeyer's position was what,13� �please?14� � � �A.�He was the full-time area coordinator.15� � � � � �MR. COLE:�Just for the record, I think16� �it's Heitmeyer.17� � � � � �MR. LITTLE:�Heitmeyer?18� � � �A.�H-E-I-T-M-E-Y-E-R.19� � � �Q.�Thank you.20� � � � � �When you say full-time area coordinator,21� �was that for your district or region, or was22� �that -- did he have responsibilities outside of23� �Region 1?24� � � �A.�No, Region 1.
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
�John WilhelmAugust 29, 2016
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�1� � � �Q.�And Abby -- Abby assumed the role of�2� �full-time area coordinator after Mr. Heitmeyer's�3� �retirement?�4� � � �A.�Yes.�5� � � �Q.�Now, you mentioned a moment ago that�6� �Ms. Dewar was your -- was technically your�7� �direct report.�Do you mean to suggest to us�8� �that there's someone else that you report to�9� �today, as well?10� � � �A.�We report to Brian Jones ultimately when11� �we have our bimonthly meetings in Columbus.12� �Bimonthly?�Every-other-month meeting in13� �Columbus.�Brian Jones normally heads those up.14� � � �Q.�And has he always conducted those15� �meetings since 2008?16� � � �A.�No, there's been a series of different17� �people in the department that have been in that18� �role.19� � � �Q.�Do you have -- and I'm sorry, the20� �position Mr. Jones currently occupies?21� � � �A.�I -- I don't know his official title.22� �I'm sorry.23� � � �Q.�Does he -- that's fine.�Does he have24� �responsibility for all full-time area
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�1� �coordinators, to your knowledge?�2� � � �A.�Yes.�3� � � �Q.�And within Region 1, in addition to�4� �yourself and Ms. Dewar, are there any other area�5� �coordinators?�6� � � �A.�In Region 1?�7� � � �Q.�Yes, sir.�8� � � �A.�No.�9� � � �Q.�Now, when you conduct an FTE review, do10� �you do that by yourself or do you have the11� �assistance of others?12� � � �A.�Depends on the size of the entity.�If13� �it's a large entity, meaning ECOT or Ohio14� �Virtual, the practice we had was always to try15� �to have four people there, and probably16� �always -- in my mind, we always wanted to have17� �at least three days on the calendar for that.18� � � �Q.�I take it, then, there would be19� �occasions when you would also assist area20� �coordinators from other regions in conducting21� �FTE reviews of larger community schools outside22� �of Region 1?23� � � �A.�That I would help?24� � � �Q.�Yes.
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�1� � � �A.�No.�2� � � �Q.�So all of the reviews you've handled or�3� �assisted in any capacity have been those in�4� �Region 1?�5� � � �A.�Yes.�Now, physically, ECOT isn't�6� �located in Region 1.�7� � � �Q.�I understand.�So when you would conduct�8� �the ECOT FTE review, you would conduct that at�9� �its offices here in Columbus?10� � � �A.�Yes.11� � � �Q.�And the three or four other people would12� �join you here in Columbus for that review?13� � � �A.�Yes.14� � � �Q.�And the reason that you're conducting15� �the FTE review of ECOT in Columbus, even though16� �that's outside your physical region, is because17� �ECOT's sponsor is located in your region?18� � � �A.�I don't know if that's the reason why.19� �It's always been there.�Was there in 2008.�And20� �I think Ron Heitmeyer and the people he worked21� �with had done it before that.22� � � �Q.�Other than that's the way that it's23� �always been done, no one's ever offered you any24� �other explanation as to why your region conducts
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�1� �the FTE reviews of ECOT?�2� � � �A.�That's correct.�3� � � �Q.�In the course of your responsibilities,�4� �do you have interaction with Aaron Rausch?�5� � � �A.�Yes.�6� � � �Q.�And -- and what's the frequency in which�7� �you have interaction with Aaron Rausch?�8� � � �A.�Occasionally he will be at one of our�9� �meetings in Columbus.10� � � �Q.�Now, when you started in 2008 as an area11� �coordinator, I take it that you would have, that12� �year, have had FTE reviews of community schools13� �conducted by you?14� � � �A.�In 2008, yes.15� � � �Q.�And that would be, for example, a16� �blended school?17� � � �A.�Yes.18� � � �Q.�Now, in terms of the training you've19� �received in order to conduct FTE reviews of20� �community schools, was there materials that were21� �provided to you at the commencement of your22� �employment?23� � � �A.�There was handbooks for things like FTE24� �reviews, the nonpublic, auxiliary, and mobile
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�1� �unit funds, those all have handbooks.�2� � � �Q.�The handbooks -- handbooks you're�3� �referring to for FTE reviews, is that something�4� �you might describe as the FTE handbook?�5� � � �A.�Yes.�6� � � �Q.�In addition to receiving a copy of the�7� �FTE handbook, was there any other information�8� �you would have received at the commencement of�9� �your employment that would instruct or set forth10� �the manner by which you were to conduct FTE11� �reviews?12� � � �A.�Not -- no.�Ron Heitmeyer would have13� �shown me how to do FTE reviews, since I would14� �have had no idea in 2008.�He would have gone15� �with me on several of those.16� � � �Q.�So the only form of written17� �documentation that was provided to you to18� �establish the manner by which you were to19� �conduct the FTE handbook -- or FTE review was20� �the FTE handbook?21� � � �A.�Yes.22� � � �Q.�And is that true during the -- the23� �entirety of your tenure, that the only written24� �materials that have been provided to you to
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�1� �instruct you on how the FTE review is to be�2� �conducted is the FTE handbook?�3� � � �A.�No.�4� � � �Q.�What other written materials were�5� �provided by ODE or any other source that informs�6� �you in any way as to the manner by which FTE�7� �reviews are to be conducted?�8� � � �A.�I recall we received at least one�9� �document from Cody Loew on how to count hours,10� �how we should be looking at those.11� � � �Q.�And Mr. Loew occupies what position,12� �please?13� � � �A.�I think his title is assistant director,14� �and -- and I believe in the division of school15� �finance.16� � � �Q.�Would Mr. Loew sometimes attend your17� �area coordinator meetings?18� � � �A.�Yes.19� � � �Q.�Is that the context in which you would20� �have interacted with Mr. Loew?21� � � �A.�Yes.22� � � �Q.�Are there any other contexts in which23� �you would have interacted with Mr. Loew other24� �than the area coordinator meetings?
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�1� � � �A.�I'm not sure I understand your question.�2� � � �Q.�Sure.�I'll ask a better question,�3� �hopefully.�4� � � � � �Outside of the every-other-month area�5� �coordinator meetings, are there any other�6� �contexts in which you would have interacted with�7� �Mr. Loew?�8� � � �A.�Emails.�9� � � �Q.�Okay.�What about in person or -- are10� �there any other contexts in which you would have11� �interacted with him?12� � � �A.�No.13� � � �Q.�Or over the phone, is there any other14� �context in which you would have interacted with15� �him?16� � � �A.�I'm sure I've talked to him on the17� �phone.18� � � �Q.�That's fine.19� � � � � �So you described that Mr. Loew provided20� �some type of documentation on how to count21� �hours.�Was that something you received in22� �calendar year 2016?23� � � �A.�Calendar year 2016.�Yes, I think.24� � � �Q.�And was this document that you received
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�1� �something that was provided to you during one of�2� �these every-other-month area coordinator�3� �meetings?�4� � � �A.�I believe.�I'm not sure if we had a�5� �special meeting for that or if it was part of�6� �the area coordinator regular meeting.�7� � � �Q.�And the document that Mr. Loew provided�8� �you, did it have a title?�I'm trying to get a�9� �better sense of what was provided to you.10� � � �A.�It was a -- a PowerPoint.11� � � �Q.�Were you given a -- an actual copy of12� �the PowerPoint presentation?13� � � �A.�I don't know if we were given or -- or14� �emailed.�Yes, we would have gotten something.15� � � �Q.�Okay.�So other than -- setting aside16� �the PowerPoint presentation materials given to17� �you by Mr. Loew sometime in 2016, were there any18� �other materials that have been provided to you19� �by the Ohio Department of Education that set20� �forth in writing the manner by which you were to21� �conduct the FTE reviews other than the FTE22� �handbook?23� � � �A.�No.24� � � �Q.�Let me show you what I've marked
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�1� �previously as Plaintiff's Exhibit 42 and ask you�2� �whether that is a copy of the PowerPoint�3� �presentation that Mr. Loew provided you in�4� �calendar year 2016.�5� � � � � �MR. COLE:�Are you -- are you asking him�6� �to verify that that's each and every page, or�7� �what are you asking him to do?�If he generally�8� �recalls, or what?�9� � � � � �MR. LITTLE:�We'll see what his answer10� �is to the question.11� � � �A.�This looks familiar.12� � � �Q.�Okay.13� � � �A.�I can't verify every page, but...14� � � �Q.�And that's fine.�Does that look like,15� �best you can tell, the type of material that16� �Mr. Loew provided you in 2016?17� � � �A.�Yes.18� � � �Q.�So if we were trying to understand what19� �materials that the Department of Education has20� �provided you to inform you on the manner by21� �which FTE reviews are conducted, we would look22� �at Exhibit 42 and then the FTE handbooks23� �themselves?24� � � �A.�Yes.
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�1� � � �Q.�And other than the initial on-the-job�2� �training provided by your immediate supervisor,�3� �has there been any other instruction or guidance�4� �that has been provided to you by the Department�5� �of Education as to the manner to conduct FTE�6� �reviews other than Exhibit 42 and the FTE review�7� �handbooks?�8� � � �A.�I would say yearly when the handbook is�9� �updated we would have discussions in an area10� �coordinator meeting.�I wouldn't classify that11� �as formal training.12� � � �Q.�That is, to the extent there were13� �changes made from an FTE review handbook from14� �one year to the next, those would be identified15� �for you at the area coordinator meeting?16� � � �A.�Yes.17� � � �Q.�Any other thing else that would have18� �been provided to you in terms of training other19� �than what you've just described for me?20� � � �A.�No.21� � � �Q.�Prior to commencing your employment with22� �the Department of Education in 2008, had you had23� �any experience with community schools?24� � � �A.�Describe "experience."
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�1� � � �Q.�Had you ever worked for a community�2� �school?�3� � � �A.�No.�4� � � �Q.�Would you have had any involvement in�5� �terms of your official responsibilities as a�6� �school administrator with what I call�7� �traditional public schools in working with any�8� �of the community schools?�9� � � �A.�No.10� � � �Q.�In your capacity as a area coordinator,11� �do you have any individuals that report directly12� �to you?13� � � �A.�No.14� � � �Q.�And your offices are physically housed15� �where?16� � � �A.�In Putnum County Educational Service17� �Center in Ottawa, Ohio.18� � � �Q.�I'm going to hand you what's previously19� �been marked as Defendant's Exhibit 149.20� � � � � �MR. LITTLE:�Doug, want me to see if I21� �can find you another copy?22� � � � � �MR. COLE:�That's fine.�These are23� �things that have been used before today, I take24� �it?
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�1� � � � � �MR. LITTLE:�Yes.�2� � � � � �MR. COLE:�Am I in frame if I lean in?�3� � � � � �THE VIDEOGRAPHER:�No, you're fine.�4� � � � � �MR. LITTLE:�Oh, I misspoke.�What�5� �number is that on the front of that, Doug,�6� �please?�7� � � � � �MR. COLE:�149.�That's what you said.�8� � � � � �MR. LITTLE:�That's Plaintiff's Exhibit�9� �149.�I apologize.10� � � � � �MR. COLE:�Yes.�Isn't that what you11� �said?�I'm sorry.12� � � � � �MR. LITTLE:�I think I misspoke.13� � � � � �MR. COLE:�Oh.14� �BY MR. LITTLE:15� � � �Q.�Sir, do you recognize Plaintiff's Ex --16� �or Plaintiff's Exhibit 149?17� � � �A.�I recognize the email cover.18� � � �Q.�And, sir, the email cover is an email19� �that you composed?20� � � �A.�Yes.21� � � �Q.�And it is an email cover that -- excuse22� �me, shows an email that you sent to Mr. Rausch?23� � � �A.�It says to Cody Loew.24� � � �Q.�Excuse me, Cody Loew.�And what is the
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�1� �date of your email?�2� � � �A.�October 30th, 2015.�3� � � �Q.�And what prompted you to send that email�4� �to Mr. Loew?�5� � � �A.�I'm guessing somebody asked us to look�6� �in our files and send everything we have related�7� �to ECOT.�8� � � �Q.�You're guessing.�Do you have a specific�9� �recollection?10� � � �A.�No.11� � � �Q.�And what did you attach to your email12� �that you forwarded to Mr. Loew?13� � � �A.�Looks like a contract.14� � � �Q.�Is that contract entitled "Funding15� �Agreement"?16� � � �A.�Yes.17� � � �Q.�And where did you find that document?18� � � �A.�This would have had to have been in our19� �files at the Ottawa office.20� � � �Q.�Do you maintain a physical set of files21� �for ECOT at the Ottawa offices?22� � � �A.�Yes.23� � � �Q.�And are -- how are those files labeled24� �or segregated?
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�1� � � �A.�The files are by year of the FTE review.�2� � � �Q.�So if I looked at 2011, would I find all�3� �the documentation regarding the FTE reviews�4� �conducted that year?�5� � � �A.�For ECOT?�6� � � �Q.�For ECOT.�7� � � �A.�Yes.�8� � � �Q.�Are the files broken down by ECOT?�9� � � �A.�Yes, by each community school would10� �have --11� � � �Q.�Each community school.12� � � �A.�-- I would have kept a file.13� � � �Q.�And other than keeping an FTE file for a14� �community school for the year in which that FTE15� �review was conducted, do you maintain at the16� �Ottawa offices any other records relating to17� �ECOT?18� � � �A.�Ask me that again.19� � � �Q.�Sure.�I'll ask you a better question.20� � � � � �What files do you maintain at the Ottawa21� �office relating to ECOT?22� � � �A.�Presently, there are none except for23� �this year's FTE review.24� � � �Q.�Were there previously other records that
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�1� �were maintained at the Ottawa office relating to�2� �ECOT?�3� � � �A.�Yes.�4� � � �Q.�And were those files removed recently?�5� � � �A.�No.�We were asked to send everything we�6� �had in relation to ECOT that was in our files.�7� � � �Q.�And when were you asked to do that?�8� � � �A.�Sometime in the last half a year.�9� � � �Q.�Sometime in calendar year 2016?10� � � �A.�'16.11� � � �Q.�And who asked you to forward all those12� �materials?13� � � �A.�I don't recall if that came from Aaron14� �Rausch or from Cody Loew or both.15� � � �Q.�And do you know to whom you forwarded16� �those materials?17� � � �A.�I would have either forwarded them to18� �Cody or whoever Aaron or Cody said they wanted19� �them forwarded to.20� � � �Q.�And do you recall what records you21� �forwarded at the request of either Mr. Rausch or22� �Mr. Loew?23� � � �A.�Whatever -- whatever we would have had.24� � � �Q.�And what do you think you had that you
Page 37
�1� �forwarded to them?�2� � � �A.�Anything relating to FTE reviews for�3� �both years, when I did the reviews.�4� � � �Q.�So for 2011 and then 2016?�5� � � �A.�Yes.�6� � � �Q.�Would you have had any other records�7� �that you maintained at the Ottawa office�8� �relating to ECOT other than FTE review materials�9� �for 2011 and 2016?10� � � �A.�Well, we obviously had this.11� � � �Q.�Okay.�And that particular exhibit that12� �you're referring to was sent in October of 2015?13� � � �A.�Right.14� � � �Q.�Okay.�Were there any other materials15� �that you retained at the Ottawa office relating16� �to ECOT other than the 2011, 2016 FTE review17� �materials and then what we've marked as18� �Plaintiff's Exhibit 149?19� � � �A.�Ask me that again.�I'm not sure I20� �understand your question.21� � � �Q.�What other materials did you maintain,22� �if any, at the Ottawa office relating to ECOT23� �other than, one, what we've marked as24� �Plaintiff's Exhibit 149 in front of you; two,
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�1� �the materials relating to the 2011 FTE review;�2� �and, three, the materials relating to ECOT's�3� �2016 FTE review?�4� � � �A.�I don't know of any.�5� � � �Q.�Okay.�And as to those three categories�6� �of materials that I just described for you, were�7� �those all maintained in a paper format?�8� � � �A.�Yes.�9� � � �Q.�Okay.�Did you separately have10� �electronic files that you maintained at the11� �Ottawa office relating to ECOT?12� � � �A.�We would have -- I would have tried13� �always to have an electronic file, and then also14� �I would try to copy and put things in a paper15� �file in case for some reason they got lost.16� � � �Q.�Okay.�So your -- your intention was17� �that the paper and electronic file would mirror18� �each other?19� � � �A.�To the best of my ability, yes.20� � � �Q.�Okay.�Sure.�And for the -- the funding21� �agreement that is included as part of22� �Plaintiff's Exhibit 149, from what file did you23� �obtain that document?24� � � �A.�I'm guessing there was a general file
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�1� �that said ECOT.�2� � � �Q.�Okay.�A general -- so in addition to a�3� �FTE file, sounds like there was more -- there�4� �was also a general file?�5� � � �A.�There must have been, because I wouldn't�6� �have kept something like this in the -- in my�7� �FTE file.�8� � � �Q.�Was there anything in the FTE -- excuse�9� �me, the general file, did it have any contents10� �other than a copy of the ECOT funding agreement?11� � � �A.�I don't recall.12� � � �Q.�Okay.�Was the general file something13� �that you also sent to ODE in the first part of14� �2016 of this year?15� � � �A.�I would have sent everything that we16� �would have had that had ECOT marked on it.17� � � �Q.�Okay.�After you forwarded, in late18� �October 2015, a copy of the ECOT funding19� �agreement to ODE, did anyone from ODE follow up20� �with you regarding that document?21� � � �A.�Follow up regarding which document?22� � � �Q.�The funding agreement that is attached23� �to your email that we've marked as Plaintiff's24� �Exhibit 149.
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�1� � � �A.�I don't recall that.�2� � � �Q.�Okay.�Prior to the filing of the�3� �lawsuit in this case, do you have a recollection�4� �of anyone at ODE in calendar year 2016 -- and�5� �we'll broaden that to include calendar year�6� �2015 -- speaking to you regarding the funding�7� �agreement?�8� � � �A.�No.�9� � � �Q.�So after you forwarded a copy of the10� �funding agreement in late October to Mr. Loew,11� �if I understand your testimony, no one at ODE12� �subsequently contacted you to inquire about that13� �document in any respect?14� � � �A.�I don't recall that, no.15� � � �Q.�Okay.�Now, with respect to -- you,16� �yourself, had received a copy of that funding17� �agreement in 2011, had you not?18� � � �A.�I -- I don't know that.19� � � �Q.�I'm going to show you what I have marked20� �as Plaintiff's Exhibit 36.�Mr. Wilhelm, I'll21� �represent to you Plaintiff's Exhibit 36 consists22� �of a number of emails, and I'd like to begin by23� �directing your attention to the page that is24� �Bates stamped in the lower right-hand corner
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�1� �with the number 6371.�2� � � �A.�Uh-huh.�3� � � � � �MR. COLE:�It's the next page, 6371.�4� �There you go.�It's the back there.�5� � � � � �THE WITNESS:�Oh, okay.�6� �BY MR. LITTLE:�7� � � �Q.�And do you see an email at the bottom�8� �from yourself to a number of people dated�9� �January 4, 2011?10� � � �A.�What am I looking for?11� � � �Q.�At the very bottom of the page, sir,12� �there is an email from John Wilhelm sent13� �Tuesday, January 4, 2011, at 3:22 p.m.�Do you14� �see that?15� � � �A.�Yes.16� � � �Q.�And there -- it's sent to Jennifer --17� �and it's B-E-N-T-A-H-I-R.18� � � �A.�Uh-huh.19� � � �Q.�Do you know her?20� � � �A.�Yes.21� � � �Q.�And who is she?22� � � �A.�She used to be the EMIS person for ECOT.23� � � �Q.�Okay.�And then there are a number of24� �people CC'd on the email, one of them being Ron
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�1� �Heitmeyer, your immediate supervisor at that�2� �time; is that correct?�3� � � �A.�Uh-huh.�Yes.�4� � � �Q.�And then the next person copied is�5� �Robert Miller.�Who is Mr. Miller?�6� � � �A.�Robert Miller was also a part-time�7� �finance office person, worked out of our office.�8� � � �Q.�Okay.�Was Mr. Miller going to assist�9� �you in an FTE review --10� � � �A.�Yes.11� � � �Q.�-- of ECOT in 2011?12� � � �A.�Yes.13� � � �Q.�And then the next individual listed is14� �James Lambert?15� � � �A.�Yes.16� � � �Q.�And who is Mr. Lambert?17� � � �A.�He is an area coordinator presently out18� �of the Troy office, Region 2.19� � � �Q.�And was Mr. Lambert, at this time, going20� �to assist you in conducting the FTE review of21� �ECOT?22� � � �A.�Yes.23� � � �Q.�The email has the subject, "Initial FTE24� �review information."�Do you see that?
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�1� � � �A.�Yes.�2� � � �Q.�And feel free to look at that email, but�3� �as I understand it, it identifies that this is�4� �the list of the type of information and the�5� �protocol that you're following in conducting a�6� �FTE review of ECOT in 2011?�7� � � �A.�Let me read it here.�8� � � �Q.�Sure.�Take your time.�9� � � �A.�Yes.10� � � �Q.�And you had referenced -- well, excuse11� �me.�In paragraph one it says, "We will attempt12� �to arrive at your office no later than 9:00 a.m.13� �on Monday, January 31.�We anticipate having a14� �total of four reviewers.�This should allow us15� �to wrap up by Tuesday afternoon, February 1 at16� �the end of the day."17� � � � � �Do you see that?18� � � �A.�Yes.19� � � �Q.�And that's consistent with what you told20� �us earlier, that typically you'd have as many as21� �four individuals assisting you in a review of22� �the magnitude of ECOT?23� � � �A.�Yes.24� � � �Q.�And this is the -- a standard type of
Page 44
�1� �letter that you would have sent to a community�2� �school advising as to the processes that you�3� �were going to deploy conducting an FTE review?�4� � � �A.�Normally there would be a form letter�5� �that I would have sent along, as well.�It's�6� �more official.�Not just a -- not just an email�7� �from me, but kind of a standard, this is to�8� �verify that our FTE review will take place on�9� �such and such a date.10� � � �Q.�Okay.�So in addition -- in this case it11� �looks like in addition to the form letter, you12� �would have sent an email outlining some of that13� �same information, as well?14� � � �A.�That's normally what I would do, yes. I15� �would verify -- probably verify on the phone16� �first dates that would work, and then once we17� �had dates, send out the official form letter18� �that says, hey, this is when we're going to come19� �out.�And then if we wanted to follow up or --20� �or needed any other clarification, I would do a21� �less formal email like this.22� � � �Q.�Okay.�Fine.�And then in the middle of23� �that same page, Bates stamped 6371, do you see24� �an email of January 5, 2011, from ECOT to
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�1� �yourself?�2� � � �A.�January 11th, did you say?�3� � � �Q.�January 5.�4� � � �A.�5.�Yes.�5� � � �Q.�Okay.�It says, "Thanks, John, for�6� �getting this information to me.�It looks like�7� �we'll be able to email you the document and will�8� �do so by Friday, the 7th of January.�I wanted�9� �to make you aware that there is a funding10� �agreement ECOT has with ODE and needed to know11� �if you already have a copy of the agreement or12� �if you will need a copy.�Also, in the printout13� �for the 31st do you want a copy of the entire14� �ECOT population or just the files you will be15� �auditing?"16� � � � � �Do you see that?17� � � �A.�Yes.18� � � �Q.�And then just to follow up, then, on the19� �email that is on the first page of Exhibit 36,20� �there's actually two emails there.�One of them21� �is an email at the bottom from yourself back to22� �ECOT dated January 6, 2011, at 1:28 p.m.�Do you23� �see that?24� � � �A.�Yes.
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
�John WilhelmAugust 29, 2016
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�1� � � �Q.�"Next week will be okay for sending me�2� �your student information in response to your�3� �original email.�I am unfamiliar with the�4� �funding agreement you're referring to, so you�5� �will need to fill me in on that one."�And then�6� �your paragraph continues.�7� � � � � �And then the email above that from ECOT�8� �to yourself says, "Among other things, I will be�9� �sure to get the funding agreement for you, as10� �well."11� � � � � �Sir, does this email refresh your12� �recollection that with respect to the FTE13� �review, ECOT advised you as to the existence of14� �a funding agreement?15� � � �A.�I don't remember this email, but if I16� �had a copy of the agreement, I would say that's17� �where I got it.18� � � �Q.�Well, in 2011 -- excuse me.�The funding19� �agreement that was contained in your file and20� �maintained at the Ottawa offices, do you believe21� �you received that directly from ECOT?22� � � � � �MR. COLE:�If you recall.23� � � �A.�If I -- I don't recall, but I -- that's24� �the only time I've seen it.
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�1� � � �Q.�Is there any reason to believe you�2� �received a copy of the funding agreement that�3� �was maintained in your files at the Ottawa�4� �offices from any source other than ECOT?�5� � � �A.�Say that again.�6� � � �Q.�Sure.�With respect to the funding�7� �agreement, which is attached to Plaintiff's�8� �Exhibit 149 and that you indicated had been�9� �maintained in the general ECOT file at your10� �Ottawa offices, are you aware of any other11� �source, other than ECOT, that would have12� �provided you that document?13� � � �A.�No.14� � � �Q.�Now, as a res -- in reaction -- excuse15� �me.16� � � � � �Do you recall having any follow-up17� �beyond what is set forth in the email chain18� �marked as Plaintiff's Exhibit 36 with anyone at19� �ECOT regarding the funding agreement?20� � � �A.�No.21� � � �Q.�And when you received the funding22� �agreement from ECOT, did you follow up with23� �anyone at the Ohio Department of Education24� �regarding it in any respect?
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�1� � � �A.�I don't recall.�2� � � �Q.�And when you say you don't recall, is�3� �that -- is it possible that you did and you just�4� �don't recall today?�5� � � �A.�That's possible.�6� � � �Q.�With respect to any of the community�7� �schools that you've conducted FTE reviews of�8� �since 2008, did any of them, to your knowledge,�9� �have a funding agreement in place with the10� �Department of Education other than ECOT?11� � � �A.�No, not that I'm aware of.12� � � �Q.�And the -- excuse me.�The funding13� �agreement that was maintained in your files in14� �Ottawa relating to ECOT and the Department of15� �Education, do you recall reading that document?16� � � �A.�Yes, I'm sure that I did.�If she sent17� �it to me --18� � � �Q.�Okay.19� � � �A.�-- I'm sure that I did.20� � � �Q.�And -- and you would have reviewed it in21� �2011?22� � � �A.�Yes.23� � � �Q.�Okay.�And you would have reviewed it24� �before the -- before you conducted the FTE
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�1� �review in 2011?�2� � � �A.�I would -- yes, I would think so.�3� � � �Q.�Okay.�And do you recall having any�4� �questions about any of the terms of the funding�5� �agreement?�6� � � �A.�No, I don't -- I mean, I really don't�7� �recall that we reacted much to that.�I don't --�8� �I don't know that it was any different than what�9� �we were doing --10� � � �Q.�Okay.11� � � �A.�-- as far as conducting the review.12� � � �Q.�That is, you believe that the review13� �that ODE was conducting -- excuse me.14� � � � � �You believe that the FTE review that ODE15� �was conducting in 2011 was, from your16� �standpoint, consistent with the funding17� �agreement?18� � � � � �MR. COLE:�Objection.�Calls for a legal19� �conclusion.20� � � �A.�Ask me the question again.21� � � �Q.�Sure.�You had no reason to believe that22� �the FTE review being conducted by ODE of ECOT in23� �2011 was anything different than what was set24� �forth in the funding agreement itself?
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� � � � � �MR. COLE:�Objection to form.�2� � � �A.�Ask me again.�3� � � �Q.�Sure.�As you sit here today, do you�4� �have any reason to believe that the FTE review�5� �conducted by ODE of ECOT in 2011 was�6� �inconsistent in any way with the terms of the�7� �funding agreement?�8� � � � � �MR. COLE:�Objection.�Calls for a legal�9� �conclusion.10� � � �A.�I conducted the review based on an11� �awareness of, at the time, of what we were12� �supposed to do, of what we were looking for in13� �the review in -- in 2011.14� � � �Q.�And when you were provided a copy of the15� �funding agreement in 2011, did you have any16� �reason to believe that the review you were17� �conducting, as you understood the way in which18� �you were supposed to conduct it, was in any way19� �inconsistent with any of the terms of the20� �funding agreement?21� � � � � �MR. COLE:�Objection.�Calls for a legal22� �conclusion.23� � � �A.�I -- I don't know how to answer that24� �question.
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�1� � � �Q.�Well, did you -- when you reviewed the�2� �funding agreement, did you say, that sets forth�3� �something different than what I think we're�4� �supposed to do?�5� � � �A.�No.�6� � � �Q.�Did you think, wow, we're violating the�7� �funding agreement in some way?�8� � � �A.�By doing our review?�9� � � �Q.�Yes, sir.10� � � �A.�No.11� � � �Q.�Okay.�So from your perspective, ODE was12� �not violating the funding agreement when it13� �conducted the 2011 review?14� � � �A.�I don't recall paying a lot of attention15� �to the funding agreement.16� � � �Q.�How is it that someone would give you a17� �document -- a legal document entitled "Funding18� �Agreement," tell you that the funding agreement19� �is something that ECOT's relying upon, and you20� �wouldn't have given it any focus?21� � � � � �MR. COLE:�Objection.�Misstates the22� �testimony.�Are you pointing to something where23� �they said ECOT was relying on something?24� � � � � �MR. LITTLE:�Yeah.�I already showed him
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�1� �the emails.�2� �BY MR. LITTLE:�3� � � �Q.�You can answer the question.�4� � � �A.�Ask me the question again.�5� � � �Q.�Sir, you've already identified for us�6� �Plaintiff's Exhibit 36 where ECOT identifies for�7� �you the funding agreement, and you've told us�8� �that you received a copy of the funding�9� �agreement.10� � � �A.�Okay.11� � � �Q.�And I'm trying to find out if someone12� �gives you a legal document, is it your answer13� �that you simply would have ignored it?14� � � �A.�No, I don't think it was inconsistent15� �with what we did -- with what we did in our16� �review.17� � � �Q.�Okay.�That's what --18� � � �A.�But I don't know that I connected the19� �legal document with anything that I didn't20� �already know we were going to be doing or how we21� �were going to be doing it.22� � � �Q.�Okay.�That is, if you thought what you23� �were proposing to do was inconsistent with the24� �legal document, I take it you would have alerted
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�1� �someone at ODE of that fact?�2� � � �A.�Yes, probably would.�3� � � �Q.�That is, if ECOT was taking a position�4� �or giving you direction that, from your�5� �standpoint, was inconsistent with what you�6� �thought your obligations were as a reviewer, you�7� �would have alerted that to your supervisor,�8� �right?�9� � � �A.�I think if I didn't know whether we10� �should be doing the review, whether we were11� �doing it, I would have certainly had a12� �conversation with Ron Heitmeyer.13� � � �Q.�Not whether you should be doing the14� �review at all, but if -- if you believed ECOT15� �was taking a position about the manner in which16� �the review was being conducted that was17� �inconsistent with what you believed was the18� �manner by -- by which you were instructed to19� �conduct the review by ODE, you certainly would20� �have brought that to your supervisor's21� �attention?22� � � � � �MR. COLE:�Objection to form.�If you23� �understand the question, you can answer.24� � � �A.�I -- I think if I thought that we were
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� �inconsistent, I would have said, what should we�2� �do with this.�3� � � �Q.�Okay.�And you have no recollection, as�4� �you sit here today, communicating to your�5� �supervisor at any -- or anyone else at ODE that�6� �you believe that the funding agreement was�7� �inconsistent with the directions you had been�8� �provided by ODE; is that true?�9� � � �A.�That's true.10� � � �Q.�And as you sit here today, you have no11� �recollection of submitting or communicating to12� �your supervisor, or anyone else at ODE, that13� �ECOT was requesting or suggesting that you take14� �any action that was inconsistent with the manner15� �in which you believe you were to conduct the FTE16� �review?17� � � �A.�That's true.18� � � �Q.�Okay.�And that's because when you19� �reviewed the funding agreement when it was20� �provided to you in early 2011, at least from21� �your reading of the document, it was consistent22� �with the manner by which you had been instructed23� �by ODE to conduct the FTE review of ECOT?24� � � �A.�Ask me that one again.
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�1� � � �Q.�Sure.�In 2011, from your reading of the�2� �funding agreement, the reason you did not bring�3� �anything -- any issue to the attention of your�4� �supervisor is because, from your reading of the�5� �document, you believed it was consistent with�6� �the instructions you had been provided by ODE on�7� �how to conduct the FTE review?�8� � � �A.�Yes, I think that's fair.�9� � � �Q.�Now, would you have provided -- excuse10� �me.�The file that you maintained in your office11� �in Ottawa, the general file containing the12� �funding agreement, what other ODE employees had13� �access to that file?14� � � �A.�Ron Heitmeyer, Rob Miller would have15� �been in that office.16� � � �Q.�And then the electronic file that you17� �maintained that mirrored what was in the paper18� �file, was that accessible from ODE's Columbus19� �office through some type of computer access?20� � � �A.�No.21� � � �Q.�Let me have you look, please, then at22� �Plaintiff's Exhibit 37.�Please take a moment23� �and review that.�Let me know when you've24� �finished your review.
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�1� � � �A.�Okay.�Okay.�2� � � �Q.�Sir, what is Plaintiff's Exhibit 37?�3� � � �A.�Looks like a clarification we were�4� �making before we did our last review.�5� � � �Q.�Is this a -- does it include a copy of�6� �an FTE review report?�7� � � �A.�Yes.�8� � � �Q.�And this was sent by you to ECOT on or�9� �about April 4, 2011?10� � � �A.�Yes.11� � � �Q.�And so after the -- the FTE review is --12� �of a community school is typically conducted in13� �two stages; there's an initial review and then14� �there's a final review?15� � � �A.�Yes.16� � � �Q.�And this email includes the17� �correspondence and the specific FTE review18� �report form from the initial review; is that19� �right?20� � � �A.�First review, yes.21� � � �Q.�Now, if we could turn to the page Bates22� �stamped 8263.23� � � �A.�Uh-huh.�Yes.24� � � �Q.�And that one's entitled, "FTE Review
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�1� �Report Form"?�2� � � �A.�Yes.�3� � � �Q.�And are you the individual who was�4� �responsible for completing this form?�5� � � �A.�Yes, it looks like mine.�6� � � �Q.�And what was the results of the initial�7� �FTE review of ECOT in 2011 as set forth in your�8� �report here?�9� � � � � �MR. COLE:�Objection.�The document10� �speaks for itself.11� � � �A.�What were the results?�I'm not sure I12� �understand your question.13� � � �Q.�Well, you review files and materials as14� �part of the initial FTE review; is that correct?15� � � �A.�Yes.16� � � �Q.�Okay.�And you're able to reach certain17� �conclusions based upon the initial FTE review;18� �is that right?19� � � �A.�Yes.20� � � �Q.�And purposes of the FTE review report21� �form is to communicate to the community school22� �what the observations and results were from that23� �initial review --24� � � �A.�Yes.
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� � � �Q.�-- is that right?�Okay.�2� � � �A.�Yes.�3� � � �Q.�And what were the results that you�4� �communicated to ECOT by this report of March 30,�5� �2011?�6� � � �A.�We identified five errors for them to�7� �take care of in the file.�This looks like�8� �they -- from the redactions, they were specific�9� �students perhaps that had errors in the file.10� � � �Q.�And so if I understand your report,11� �there would have been over 480 student files12� �selected for this initial review?13� � � �A.�That's what it says, yes.14� � � �Q.�And as a result of that review of those15� �480 student files, it appears there were five16� �student files for which issues were identified?17� � � �A.�Yes.18� � � �Q.�And your report sets forth the -- the19� �particular questions that needed to be resolved20� �with respect to those five students?21� � � �A.�Yes.22� � � �Q.�And other than with respect to the five23� �students identified on the FTE review report,24� �then there would not have been any other issues
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�1� �identified by you and the other reviewers as�2� �part of the initial -- or first review in 2011�3� �for ECOT; is that correct?�4� � � �A.�That's correct.�5� � � �Q.�And then mechanically, once you submit�6� �this report to ECOT, then arrangements were made�7� �to schedule the second portion of the FTE�8� �review?�9� � � �A.�Yes.10� � � �Q.�And this particular form of report,11� �is -- is that form still used today?12� � � �A.�A -- a variation of it.�I think it's13� �changed a bit over the year, but basically14� �identifying issues and then making15� �recommendations.16� � � �Q.�Okay.17� � � �A.�And in 2011, I would not have sent a18� �letter that regurgitated all of this.�I would19� �have had a form kind of a letter that said20� �attached is the -- is the review report form and21� �that's what you're seeing here.22� � � �Q.�Okay.�And has it always been the case23� �since 2008 that when you've conducted an FTE24� �review of a community school, you've done so in
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�1� �a format comparable to this?�2� � � �A.�Yes.�3� � � �Q.�Now, you -- you mentioned earlier that�4� �Findlay Digital would have also been reviewed�5� �from an FTE standpoint in 2011?�6� � � �A.�Yes.�7� � � �Q.�And was the same process that you�8� �utilized in conducting the FTE review of ECOT in�9� �2011 used with Findlay Digital?10� � � �A.�Same process meaning two visits?11� � � �Q.�Let's start there, yes.12� � � �A.�Yeah.13� � � �Q.�And was -- were the same type of14� �standards applied to -- in conducting the15� �Findlay Digital FTE review in 2011 that were16� �applied to ECOT in 2011?17� � � �A.�Standard meaning?18� � � �Q.�The manner and methodology by which you19� �verified the FTEs.20� � � �A.�Yes.21� � � �Q.�And for the 2012 FTE review of Ohio22� �Virtual Academy, would you have used the same23� �standards that year for Ohio Virtual Academy24� �that you'd used for Findlay Digital and ECOT in
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�1� �2011?�2� � � �A.�Yes.�3� � � �Q.�Let me show you what I've marked as�4� �Exhibit 38, please.�5� � � � � �MR. COLE:�Thanks.�6� � � �Q.�Let me know once you've had a chance to�7� �review the exhibit.�8� � � �A.�I've looked at it.�9� � � �Q.�And is Plaintiff's Exhibit 38 a copy of10� �a August 3, 2011, correspondence from you to11� �Jeff Forster at ECOT?12� � � �A.�Yes.13� � � �Q.�And this would have set -- been the14� �cover letter that would have accompanied the FTE15� �review report form finalizing the 2011 FTE16� �review of ECOT?17� � � �A.�Yes.18� � � �Q.�And this particular letter would have19� �copied the Auditor of the State of Ohio?20� � � �A.�Yes.21� � � �Q.�And is this -- when you provided the --22� �the results of FTE reviews for community23� �schools, did you make it a practice of copying24� �the Auditor of the State of Ohio?
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�1� � � �A.�That was usually the case.�We had�2� �differing directions, as I recall, from one year�3� �to the next over which ones needed to go to the�4� �auditor and which ones didn't.�Now it's, I�5� �think, standard for the last review, the final�6� �review.�At one time we were told to send them�7� �both reviews, and then I think we were told the�8� �auditor doesn't want all those, especially the�9� �initial reviews.�So it's -- it's varied back10� �and forth.�But I think the standard now is that11� �we're supposed to do the last review with the12� �auditor.13� � � �Q.�Was the final review of a community14� �school to be sent to the auditor at all times?15� � � �A.�I think so.16� � � �Q.�Okay.�And then if we look at the first17� �paragraph of your August 3 correspondence, it18� �indicates that you, together with a number of19� �individuals, conducted the FTE review for the20� �2011 fiscal year and found all the original21� �source documentation to be in order with few22� �exceptions.�Please refer to comments, including23� �the FTE review report form, for more details24� �concerning the review specifics.
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�1� � � � � �Do you see that?�2� � � �A.�Yes.�3� � � �Q.�And then if we look at Plaintiff's�4� �Exhibit 39, which I will hand to you, this will�5� �be a copy of the final FTE review report form�6� �for ECOT's 2011 FTE review?�7� � � �A.�Yes.�8� � � �Q.�Now, let me show you what I'm marking --�9� �or have marked as Plaintiff's Exhibit 20 for a10� �moment.�This is a copy of the funding agreement11� �that was attached to Plaintiff's Exhibit 149,12� �your email of October 2015.�If I could direct13� �your attention to the second page of that14� �document, which has the Bates stamp ECOT 88 in15� �the lower right-hand corner.16� � � �A.�Yes.17� � � �Q.�And I'd like you to look at heading,18� �"Documentation of Learning Opportunities."19� � � �A.�Yes.20� � � �Q.�And in the middle of that paragraph it21� �says, "For the purpose of an enrollment audit,22� �the school shall maintain in its paper and/or23� �electronic files for each student the following24� �documentation," and then there's A, B, and C.
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�1� � � � � �Do you see where I'm at?�2� � � �A.�Uh-huh.�Yes.�3� � � �Q.�And A says, "Learning opportunity hours�4� �will be verified by a certified ECOT employee�5� �with appropriate administrative oversight and�6� �documentation that each such employee�7� �understands the significance and implication of�8� �his/her signature."�9� � � � � �Do you see that?10� � � �A.�Yes.11� � � �Q.�When you reviewed the ECOT files for FTE12� �purposes in 2011, were such certifications13� �contained in the files?14� � � �A.�I don't recall that, no.15� � � �Q.�Do you recall one way or the other?16� � � �A.�Memory is -- is difficult, but I don't17� �recall seeing certifications like we saw the18� �last time we did the ECOT review this -- this19� �time.20� � � �Q.�And so --21� � � �A.�Where they were signed by teachers.22� � � �Q.�So is it your testimony you're denying23� �that the teacher certifications were contained24� �in the ECOT files in 2011?
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�1� � � �A.�I don't recall seeing them.�2� � � �Q.�B says, "A record or grades earned or�3� �proficiency test results while a student is at�4� �ECOT."�5� � � � � �Were those records contained in the�6� �files that you reviewed in 2011?�7� � � �A.�Record of grades earned.�I don't recall�8� �that either.�9� � � �Q.�C, "Documentation federally required of10� �special needs students for which the school11� �requests additional funding."12� � � � � �Was that documentation contained in the13� �files?14� � � �A.�I don't -- don't remember.15� � � �Q.�When you conduct a FTE review of a16� �school, do you keep some type of summary or17� �record of the particular materials that you have18� �reviewed?19� � � �A.�Yes.20� � � �Q.�And how is -- what's that memorialized21� �in?22� � � �A.�Only as it pertains to what we're23� �looking for.�Normally we are not ever looking24� �at grades in a report -- in a file for students.
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�1� � � �Q.�Well, if you wanted to explain to me,�2� �given your lack of recollection, specifically�3� �what you looked at at ECOT in 2011, what�4� �document would you show me?�5� � � �A.�The final report form.�6� � � �Q.�And the final report form --�7� � � � � �MR. COLE:�39.�8� � � �Q.�-- Plaintiff's Exhibit 39, is that going�9� �to itemize for us each of the documents that10� �were reviewed during the course of the 201111� �review?12� � � �A.�It's going to identify what we saw13� �that -- that we thought needed correction.14� � � �Q.�Okay.�So the final review report form15� �identifies, from your perspective, items that16� �needed to be rectified.�But where do you have17� �or what document do you have that summarizes18� �specifically what you looked for -- or looked at19� �in each student's file?20� � � �A.�I don't have -- I don't have a separate21� �document for that.22� � � �Q.�Okay.�Are you aware of any document23� �that you or any of the other reviewers24� �maintained in 2011 that checked -- shows a check
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�1� �mark or some other type of confirmation of the�2� �specific documents reviewed as part of the 2011�3� �FTE review?�4� � � �A.�No.�5� � � �Q.�Looking back, sir, at Plaintiff's�6� �Exhibit 20, a funding agreement, Section 1 on�7� �the first page, Bates stamped ECOT 87, has a�8� �heading, "Documentation of Enrollment."�9� � � � � �Do you see that?10� � � �A.�Yes.11� � � �Q.�And in the middle it says, "The school12� �shall maintain in its files records of the13� �following."�It says, "Documentation or evidence14� �of delivery and installation of the computer and15� �all necessary related hardware."16� � � � � �Do you know whether those materials were17� �contained in the files made available by ECOT as18� �part of the 2011 FTE review?19� � � �A.�Yes.20� � � �Q.�And they were?21� � � �A.�Yes.22� � � �Q.�And B says, "The successful connection23� �to the school's website, where the student can24� �access electronic curriculum and other
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�1� �electronic resources offered by the school."�2� � � � � �Do you know whether those type of�3� �records were maintained by ECOT in the student�4� �personnel files that you reviewed as part of the�5� �FTE review in 2011?�6� � � �A.�Yes.�7� � � �Q.�They were included?�8� � � �A.�I think so.�9� � � �Q.�If you could turn to the next page,10� �please.�C says, "Delivery, by any means, of the11� �curriculum and materials necessary to begin12� �education of the student (for each student, ECOT13� �shall retain documentation of the delivery of14� �curriculum materials and the date and mode of15� �delivery)."16� � � � � �Were those type of materials included in17� �the student files that were reviewed as part of18� �the 2011 FTE review?19� � � �A.�Yes.20� � � �Q.�And D says, "The completion of the21� �student's first assignment."22� � � � � �Can you tell us whether or not the --23� �that type of documentation was included in the24� �student files reviewed by you as part of the
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�1� �2011 FTE review?�2� � � �A.�The completion of the student's first�3� �assignment.�I would recall that being whenever�4� �they first logged into the computer.�5� � � �Q.�Is that how, as part of the FTE review�6� �that was being conducted in 2011, you would have�7� �measured the completion of the student's first�8� �assignment?�9� � � �A.�Yes.10� � � � � �MR. COLE:�Objection.11� � � �Q.�You can answer.12� � � �A.�That's the only way we would have13� �started -- when they first started, we would14� �have looked at what their first login date was.15� � � �Q.�As part of the 2011 FTE review, did you16� �look at the documents that are set forth as17� �paragraph 1A, B, C, and D of the funding18� �agreement in determining whether or not the19� �student -- excuse me, ECOT should receive FTE20� �funding for that student?21� � � �A.�For 1A, B, C, and D?22� � � �Q.�Yes, sir.23� � � �A.�Yes, with the exception of D.�I don't24� �recall that we had a specific document from ECOT
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�1� �that said, here's a sample of their first�2� �assignment.�3� � � �Q.�Okay.�So as part of the conducting of�4� �the 2011 FTE review, if ECOT had in the�5� �student's file either 1A, 1B, or 1C of the -- as�6� �set forth in the funding agreement, did ECOT�7� �then receive the FTE funding for that student�8� �that year?�9� � � �A.�Yes.10� � � �Q.�And with respect to Section 2, then, of11� �the FTE funding agreement, I take it that you12� �did not -- as a -- you did not, as a reviewer,13� �as part of this FTE review, specifically look to14� �see whether categories A, B, and C were15� �maintained in any of the files?16� � � �A.�A says, "Learning opportunity hours will17� �be verified by a certificated ECOT employee with18� �appropriate administrative oversight and19� �documentation that each employee understands."20� � � � � �I don't recall seeing that in the file.21� � � �Q.�My question is were you looking for it?22� � � �A.�No.23� � � �Q.�And were you -- with respect to any of24� �the documents set forth in 2A, B, and C, I take
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�1� �it, therefore, in determining whether or not�2� �ECOT would receive FTE credit for a particular�3� �student, you were not even looking at those�4� �categories of information?�5� � � �A.�We did -- I'm quite certain we did not�6� �look for a record of grades.�7� � � �Q.�Okay.�8� � � �A.�And we did not look or have any�9� �requirement, that we were aware of, of special10� �needs students.11� � � �Q.�Okay.�So then looking back then to12� �Section 1 of the funding agreement, and we're on13� �the -- we're still on the second page though --14� � � �A.�Could I -- excuse me.�Could I go back15� �to -- to the original -- your original question?16� � � �Q.�Sure.17� � � �A.�Document -- item C, 2C, if that -- if18� �that's reading that we were looking at IEPs for19� �students that have handicaps, we would have20� �looked at those.21� � � �Q.�Okay.�Because --22� � � �A.�I'm not sure -- as I read that the first23� �time, I wasn't sure that's what that was24� �referring to.
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�1� � � �Q.�All right.�I appreciate that�2� �clarification.�And that's because community�3� �schools are entitled to additional funding in�4� �the event of a special needs student?�5� � � �A.�Yes.�6� � � �Q.�And in order for -- as part of an FTE�7� �review, you would have looked to see whether the�8� �appropriate paperwork was in place for a�9� �community school to receive that additional10� �financing --11� � � �A.�Yes.12� � � �Q.�-- or funding?13� � � �A.�We would have been looking specifically14� �if the IEP document was in place, and then if we15� �selected a student that had, as one of our 50016� �students or whatever number we were looking17� �at -- a fair number of students that had18� �identified IEP handicaps, we would match those19� �handicapping conditions up with what the system20� �said that student's handicap was.�So that we21� �would have verified those.22� � � �Q.�So then if we look above paragraph 2 on23� �the second page of the funding agreement,24� �immediately above the start of Section 2 where
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�1� �it says, "A student shall be considered enrolled�2� �and funding shall begin upon the satisfaction of�3� �one or more of the provisions of this section,"�4� �do you see that?�5� � � �A.�Yes.�6� � � �Q.�Okay.�And am I to understand that for�7� �the 2011 FTE review that ODE would have�8� �considered a student enrolled and funding would�9� �begin upon satisfaction of either Section 1A, B,10� �or C of the funding agreement?11� � � � � �MR. COLE:�I'm going to object to form.12� �I just want to be clear, you're asking him did13� �he do it because it's in that funding agreement,14� �or are you saying were those the tests?15� � � � � �MR. LITTLE:�I don't think you're16� �allowed to make objections other than to form,17� �Doug, the last time I checked with the rules. I18� �think the question is fairly clear.19� �BY MR. LITTLE:20� � � �Q.�If you'd answer the question, please.21� � � �A.�Would you ask it again?22� � � �Q.�Sure.�From what you told me, I23� �understand that for the 2011 FTE review that ODE24� �would have considered a student enrolled at ECOT
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�1� �if any of the items set forth in 1A, B, or C of�2� �the funding agreement were satisfied?�3� � � �A.�Not one of the three.�Would be A, B,�4� �and C.�For example, if they would have been�5� �delivered a computer and we had record of that,�6� �but they never logged in, that would -- they�7� �would not be considered for funding.�8� � � �Q.�Okay.�So for the 2011 review, if a�9� �student had received the software and computer10� �and was logged in, then you would have been --11� �you would have viewed them as enrolled?12� � � �A.�Yes, that would be the start date.13� � � �Q.�And if a student was enrolled, using the14� �criteria that is set forth in Section 1 of the15� �funding agreement, then ECOT was entitled to FTE16� �funding for that student provided they had not17� �violated the 105-hour rule?18� � � �A.�Yes.19� � � �Q.�Now, as part of the 2011 FTE review, did20� �you or any other area coordinators, to your21� �knowledge, review the durational records; that22� �is, the computer durational records for any of23� �the students?24� � � �A.�No.
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�1� � � �Q.�And prior to the FTE reviews conducted�2� �in calendar year 2016, was there ever an�3� �occasion in which you or any other area�4� �coordinators, to your knowledge, would have�5� �reviewed durational records for any of the FTE�6� �reviews that you had conducted?�7� � � �A.�That I conducted?�8� � � �Q.�Yes, sir.�9� � � �A.�Prior to 2016, you're saying?10� � � �Q.�Yes, please.11� � � �A.�No.12� � � �Q.�And just so we're clear, durational13� �records would be any type of record measuring14� �the time of a student's engagement; is that how15� �you understand the term?16� � � �A.�Yes, where they -- where you could show17� �that they were directly engaged in the learning.18� � � �Q.�Okay.�So was there any effort, to your19� �knowledge, prior to the FTE reviews conducted in20� �2016 for the area coordinators to measure or21� �assess student engagement as part of the FTE22� �review process?23� � � �A.�For?�For electronic schools?24� � � �Q.�Yes, sir.
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�1� � � �A.�No.�2� � � �Q.�And -- and was there any type of�3� �measurement done of -- excuse me.�Electronic�4� �schools we're referring to as eSchools?�5� � � �A.�Yes.�6� � � �Q.�Okay.�Were there any type of effort --�7� �efforts undertaken, to your knowledge, by area�8� �coordinators prior to F -- 2016 to measure�9� �student engagement for nonelectronic schools?10� � � �A.�Yes.11� � � �Q.�And what are you referring to, please?12� � � �A.�There was a discussion the year before13� �about an area coordinator working with a school14� �that was not able to produce duration.15� � � �Q.�Was that something you were personally16� �involved in?17� � � �A.�No.18� � � �Q.�Do you know what school you're referring19� �to?20� � � �A.�You all know which one it is.�I can't21� �remember the name of it.22� � � �Q.�This --23� � � �A.�If you say the name of it, I can verify24� �that that's the one I'm thinking.
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�1� � � �Q.�Is Provost the name?�2� � � �A.�Yes.�3� � � �Q.�And is Provost -- what type -- excuse�4� �me.�What kind of school is Provost?�5� � � �A.�I -- I don't know.�6� � � �Q.�And do you understand -- excuse me.�Do�7� �you have any understanding as to what the�8� �circumstances were that involved an examination�9� �of duration records as it related to Provost?10� � � �A.�Not a -- not a good understanding, no.11� �I mean, we were never briefed on that by anyone12� �at the department, to say this is -- this is13� �what's happening with Provost or this is what's14� �going on there.15� � � �Q.�So anything you heard about Provost was16� �secondhand?17� � � �A.�Secondhand.18� � � �Q.�That is, once you heard secondhand19� �information for Provost, your supervisor, for20� �example, did not advise you, based upon what21� �occurred with Provost in 2015, we need to22� �conduct our FTE reviews in a different --23� �different approach?24� � � �A.�Well, I think that was the general
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�1� �trend, is that -- that when Cody Loew was�2� �instructing us on reviews for '16, that this is�3� �how we're going to be doing them.�4� � � �Q.�Okay.�Thank you.�I appreciate that�5� �clarification.�6� � � � � �At no time in 2015 did anyone at ODE,�7� �including Cody Loew, advise you that the FTE�8� �reviews should be conducted in a manner�9� �different than what you historically had done?10� � � �A.�I can't recall -- I can't recall whether11� �that happened or not, and I -- and I'll tell you12� �why.�It's because I knew I didn't have any13� �electronic schools on my docket for '15.14� � � �Q.�Okay.�What you do recall specifically,15� �however, is that it was in the first part of16� �2016 that Mr. Loew advised you that there were17� �going to be some changes done or made on how FTE18� �reviews are conducted?19� � � �A.�Yes.20� � � �Q.�And the process that you -- excuse me.21� �The historical approach of not examining22� �durational records or engagement records of23� �eSchools, as part of an FTE review, that's the24� �approach that you followed because that was your
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�1� �understanding as to the standards set forth in�2� �the FTE manual?�3� � � �A.�Yes.�4� � � �Q.�That is, you didn't believe the�5� �standards set in the FTE manual required you to�6� �review durational records?�7� � � �A.�No, I didn't.�8� � � �Q.�Okay.�And -- and prior to 2016, you�9� �have no recollection of anyone at ODE telling10� �you that the standards set forth in the FTE11� �manual should -- excuse me, obligated you to12� �review durational records of eSchools?13� � � �A.�The 2015 manual actually referenced14� �that.15� � � �Q.�Okay.�We're going to go through that.16� � � � � �Did you look at the 2015 manual with17� �respect to durational records for eSchools any18� �time prior to 2016?19� � � �A.�Yes.20� � � �Q.�Okay.�So is that the first manual that21� �had any reference to durational records?22� � � �A.�Actually, I think earlier ones had some23� �relation -- or suggested durational records.24� �They were not emphasized.
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�1� � � �Q.�So irrespective of the particular manual�2� �that we're -- that's in place, I take it, then,�3� �prior to 2016, irrespective of whatever the�4� �manual said, you never viewed it as obligating�5� �you to look at durational records of eSchools�6� �inasmuch as you did not do so?�7� � � �A.�That's correct.�8� � � �Q.�Okay.�And irrespective of the�9� �particular manual in place, you did not believe10� �the standards set forth in those manuals11� �obligated you to measure student engagement of12� �eSchool students; is that right, prior to 2016?13� � � �A.�It was -- we didn't do it.14� � � �Q.�Okay.15� � � �A.�I don't know if we were obligated to do16� �it, but we did not do it.17� � � �Q.�You never received any type of18� �admonition or reprimand from a supervisor19� �suggesting you had not conducted the FTE reviews20� �in an appropriate fashion, did you?21� � � �A.�In which -- in which year?22� � � �Q.�Any year.23� � � �A.�No.�I received correction from Cody24� �Loew in 2016 that I should use the letter
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�1� �instead of the -- the form.�My standard always�2� �was to send a form letter saying, here's your --�3� �attached is the copy of your review and attached�4� �is the -- the report form that you see here.�5� � � �Q.�Yes.�6� � � �A.�Apparently some of the coordinators used�7� �a letter that was much more detailed that�8� �regurgitated this same information in letter�9� �form.�And Cody had said, you know, you need --10� �we all need to be doing this the same, and you11� �want to put the document -- or the information12� �from the report form in the letter that you send13� �instead of the report form.14� � � � � �So I -- that's -- I don't know if -- I15� �don't -- I didn't feel like he was picking on me16� �or anything.�I think he was saying we need to17� �be standard, so you need to do it this way.18� � � �Q.�That is, your understanding that -- is19� �that ODE expects all community schools to be20� �treated in the same fashion?21� � � �A.�Well, he wanted the information that22� �went out to the community schools to be the same23� �kind of document.24� � � �Q.�Did you understand that all the
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�1� �community schools were to be subject to the same�2� �testing standards for FTE reviews?�3� � � �A.�The same testing standards?�4� � � �Q.�Are you aware of any schools -- any�5� �community schools for which there were special�6� �deals cut in terms of the type of documentation�7� �they were to make available?�8� � � �A.�No.�9� � � �Q.�Okay.�As far as from your perspective,10� �all the community schools were to be treated11� �uniformly, in the same fashion?12� � � �A.�Yes.13� � � �Q.�Did anyone ever suggest that the14� �community schools should not be uniformly15� �treated in terms of how they were being measured16� �and assessed?17� � � �A.�No.18� � � �Q.�And at least when you conducted your FTE19� �reviews, you tried to ensure that you were20� �treating all community schools uniformly and21� �applying the -- the same standards to each?22� � � �A.�Yes, I tried to do that.23� � � �Q.�And no one, prior to 2016, ever24� �suggested or intimated to you that you were
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�1� �failing to perform your job adequately, did�2� �they?�3� � � �A.�No.�4� � � �Q.�Okay.�And when you conducted FTE�5� �reviews without reviewing durational records or�6� �student engagement records, you still believed�7� �that you were doing your job properly?�8� � � �A.�Yes.�9� � � �Q.�And you were doing your job consistent10� �with the directions you had been provided by11� �ODE?12� � � �A.�Yes.13� � � �Q.�Now, if I could -- let me show you again14� �what was marked previously as Plaintiff's15� �Exhibit 42.�And you told us Exhibit 42 looked16� �like the PowerPoint presentation presented by17� �Mr. Loew in January 2016?18� � � �A.�Yes.19� � � �Q.�And if we could look at the second page20� �of that document.�It says in the middle -- it21� �has a PowerPoint slide and then there has some22� �text underneath it that says, "The first major23� �change focuses on eSchools and requesting24� �computer logs from them."
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�1� � � �A.�Yes.�2� � � �Q.�And "The second major change focuses on�3� �new requirements for documentation and reviewing�4� �non-computer, non-classroom based learning�5� �opportunities.�This will primarily impact�6� �blended learning schools."�7� � � � � �Do you see that?�8� � � �A.�Yes.�9� � � �Q.�And these -- those two text sentences I10� �just read to you relate to what are described as11� �major FTE review manual changes?12� � � �A.�Yes.13� � � �Q.�Was it during the course of this14� �PowerPoint presentation that Mr. Loew15� �communicated to you and other area coordinators16� �that as part of the 2016 FTE reviews that ODE17� �would be focusing on eSchools and requesting18� �computer logs from them?19� � � �A.�Not just eSchools.�I think they were20� �talking about issues with blended schools as21� �well.22� � � �Q.�Okay.�And was this the first time that23� �ODE had noted that they were going to have the24� �area managers request computer logs from
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�1� �community schools?�2� � � �A.�Yes, I think that's -- yes.�I think�3� �there was discussion prior to that, but this was�4� �the first time we saw how that was going to be�5� �done.�6� � � �Q.�And when you say there was discussion�7� �before this, what do you recall there being and�8� �when?�9� � � �A.�Throughout the first half of the year,10� �when they were working on the manual, you would11� �have -- if there was a meeting of the area12� �coordinators and there was any discussion about13� �how FTEs were going to be reviewed or done in a14� �given year, that's the time that that would have15� �been discussed, I would think.16� � � �Q.�And when you say the first half of the17� �year, you mean the first half of the school18� �year?19� � � �A.�Of the school year.20� � � �Q.�Okay.�So sometime September -- post21� �September 2015; is that what you're referring22� �to?23� � � �A.�Yes.24� � � �Q.�And would you, yourself, have -- have --
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PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� �have had any involvement in drafting the FTE�2� �manual?�3� � � �A.�No.�4� � � �Q.�Okay.�Do you -- do you know whether the�5� �area coordinators have input in revisions to the�6� �manual?�7� � � �A.�There is a task force made up of area�8� �coordinators that's assigned to different things�9� �and that was -- that's one of the task forces.10� �I was not on that task force.11� � � �Q.�Okay.�Thank you.12� � � � � �So sometime in -- or post September13� �2015, you would have participated in an area14� �coordinator meeting in which the subject of15� �reviewing computer logins for community schools16� �was addressed?17� � � �A.�Say that again.�I'm sorry.18� � � �Q.�Sure.�I'm just trying to get the time19� �frame.20� � � � � �Was it -- was it sometime after21� �September 2015 that you first participated in22� �area coordination meeting -- or coordinator23� �meeting in which the subject of obtaining24� �computer logins from community schools was
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�1� �discussed?�2� � � �A.�Yes, I think that would be accurate.�3� � � �Q.�Okay.�And I take it that, as you�4� �understood it, prior to the FTE reviews�5� �conducted in 2016, you're not aware of any�6� �eSchools that were have -- being requested to�7� �provide login information as part of an FTE�8� �review?�9� � � �A.�Prior to '16?10� � � �Q.�Yes, sir.11� � � �A.�No.12� � � �Q.�And prior to '16, you're not aware of13� �any eSchools that are being -- had been14� �requested by ODE, as part of an FTE review, to15� �provide durational records or student engagement16� �records as part of -- of the review?17� � � �A.�No, other than the one you talked about,18� �Provost.19� � � �Q.�Provost.20� � � �A.�Is Provost an eSchool?21� � � �Q.�Well, I'll have to -- I can't answer the22� �questions for you today.23� � � �A.�Well, I -- I just did not pay a lot of24� �attention to that.
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�1� � � �Q.�Okay.�What -- what you understood is in�2� �terms of your practice and what you understood�3� �to be the practice of other reviewers is that�4� �you were not looking at login records or�5� �durational records or student engagement records�6� �for students as part of FTE reviews prior to�7� �2016?�8� � � �A.�That's correct.�9� � � �Q.�Okay.�And you understood that to be10� �consistent with the department's policy at that11� �point in time?12� � � �A.�It was consistent with what I understood13� �the department's policy to be.14� � � �Q.�Sure.�And no one ever suggested to you15� �that you were acting inconsistent with the16� �department's policy?17� � � �A.�No.18� � � � � �MR. LITTLE:�Now --19� � � � � �MR. COLE:�It's been almost two hours,20� �Marion.�Is there a good time for a break coming21� �up?22� � � � � �MR. LITTLE:�Yeah, this is fine.�Let's23� �take a break.24� � � � � �THE VIDEOGRAPHER:�Off the record.
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�1� � � � � �(Recess.)�2� � � � � �THE VIDEOGRAPHER:�Back on the record.�3� �BY MR. LITTLE:�4� � � �Q.�Sir, before we took a broke -- a break,�5� �we were looking at Plaintiff's Exhibit 42.�Was�6� �this the first time that the ODE formally�7� �communicated to the area coordinators that the�8� �log on information and student engagement�9� �records were going to be examined?10� � � �A.�I'm not sure it was the first time.11� � � �Q.�You said there had been discussions12� �about issues in the -- after September 2015.13� �I'm trying to find out, to the best of your14� �recollection, when it was that there was15� �actually a decision to move forward with a16� �particular course of action.17� � � �A.�I don't recall that.18� � � �Q.�Now, let me show you what I'm going to19� �marked as Exhibit 154.�I'm going to confirm we20� �don't have 154.�We do.�Strike that.21� � � � � �I'm going to show you what I've marked22� �as Exhibit 155 and ask you whether that is an23� �October 2, 2015, email from Mr. Christopher24� �Babal to, among others, yourself.
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�1� � � �A.�Yes.�2� � � �Q.�And it says, "I have checked my list and�3� �it looks like ECOT was already listed in your�4� �area, area 1.�I was initially under the same�5� �impression you were that Don/Estelle in area 6�6� �would have to review them."�Let me stop there.�7� � � � � �Do you recall there being any confusion�8� �or issues as to who would conduct the review of�9� �ECOT for 2016?10� � � �A.�No.11� � � �Q.�Do you recall when you were first12� �advised whether there would be an FTE review --13� �or, excuse me, that there would be an FTE review14� �of ECOT being conducted by your offices?15� � � �A.�I'm sorry, could you say that again.16� � � �Q.�Sure.�Do you recall when you were first17� �advised that you were be -- would be conducting18� �an FTE review of ECOT?19� � � �A.�For 2016?20� � � �Q.�Yes, sir.21� � � �A.�I would have had that on my calendar a22� �year before that.�I mean, those -- I keep a23� �spreadsheet so I know which year the five years24� �are for the schools.�And then Chris Babal would
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�1� �have been in a position, in his position, to --�2� �to kind of coordinate that, verify it, of who�3� �was doing which reviews.�But I keep my own�4� �spreadsheet so I don't forget one.�5� � � �Q.�Okay.�The second paragraph says, "As�6� �far as tracking hours, in the attached FTE�7� �manual, Cody found something on page 47 that�8� �should justify the need for us to check logged�9� �hours.�Is that how you read it?"10� � � � � �Do you see what I'm reading?11� � � �A.�Yes.12� � � �Q.�And the attachment is entitled, FTE13� �Review and Community School Handbook -- excuse14� �me -- Community School Enrollment Handbook,15� �revised January 5, 2015.�Do you see that?16� � � �A.�Yes.17� � � �Q.�And, sir, do you recall there being any18� �response you offered to Mr. Babal in response to19� �his correspondence of October 2nd?20� � � �A.�No.21� � � �Q.�Do you recall whether after receiving22� �the October 2nd, 2015, email you would have23� �reviewed the attachment and simply focused your24� �attention on page 47?
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�1� � � �A.�47?�No, I don't recall responding to�2� �it.�3� � � �Q.�Do you recall there being an issue that�4� �existed as of October 2nd, 2015, as to trying to�5� �find language in the FTE manual that would�6� �justify the need for ODE to check logged hours?�7� � � �A.�I'm sorry.�Ask me that one more time.�8� � � �Q.�Do you recall there being an issue that�9� �existed as of October 2nd, 2015, as to trying to10� �find language in the FTE manual that would11� �justify the need for ODE to check logged hours?12� � � �A.�No.13� � � �Q.�Irrespective of whether you responded in14� �the email, do you recall responding verbally to15� �any of the points or comments offered by16� �Mr. Babal in his email of October 2nd, 2015?17� � � �A.�No.18� � � �Q.�And, sir, if we could look at page 46 of19� �the manual attached as exhibit -- attached to20� �Exhibit 155 for a moment.21� � � �A.�Okay.22� � � � � �MR. COLE:�I'm sorry, what page was23� �that?24� � � � � �MR. LITTLE:�We're going to start at
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�1� �page 46.�2� � � � � �MR. COLE:�Thank you.�3� �BY MR. LITTLE:�4� � � �Q.�Do you see where we have four headings:�5� �"IEP Records," "Juvenile Detention Center,"�6� �"Kindergarten Enrollment," and then finally�7� �"Non-classroom, Non-computer Learning�8� �Activities"?�9� � � �A.�Yes.10� � � �Q.�And does the heading "Non-classroom,11� �Non-computer Learning Activities" relate to12� �issues involving correspondence schools?13� � � �A.�I'm going to read the explanation.14� � � �Q.�Sure.�Take your time.15� � � � � � � �(Pause in proceedings.)16� � � �A.�I believe this section is referring to17� �not correspondence schools, but schools that may18� �offer students something not at the school.�For19� �example, if they had them on home study or20� �something.21� � � �Q.�Do you believe this section applies to22� �eSchools?23� � � �A.�It could.24� � � �Q.�Is this the section that you've relied
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�1� �upon in the past in conducting FTE reviews of�2� �eSchools?�3� � � �A.�No.�This is relatively new.�4� � � �Q.�Let me have you take a moment and look�5� �at Plaintiff's Exhibit 35.�The document has the�6� �title, "Ohio FTE Review and Community School�7� �Enrollment, Office of School Finance, January�8� �2016."�Please take a moment and review the�9� �exhibit.10� � � � � � � �(Pause in proceedings.)11� � � �A.�Was there a particular section?12� � � �Q.�Let me first ask you whether that's a13� �copy of an FTE manual you received for 2016 at14� �any point in time.15� � � �A.�Yes.16� � � �Q.�And when did you first receive this17� �document?18� � � �A.�I don't know when.�It would have been19� �whenever they finalized the document and sent it20� �out.21� � � �Q.�Were you given a copy of this in22� �conjunction with Mr. Loew's PowerPoint23� �presentation that impact -- or noted the changes24� �that were being made in measuring durational
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�1� �records or looking and inspecting durational�2� �records?�3� � � �A.�I -- I'm recollecting this would have�4� �been out before that.�5� � � �Q.�Okay.�And if you could turn your�6� �attention to page 338.�Well, let me back up a�7� �second.�8� � � � � �Did you understand that Mr. Loew's�9� �PowerPoint presentation, which outlined the10� �changes in the 2016 FTE manual, would be11� �referring to this particular manual?12� � � �A.�Yes.13� � � �Q.�Okay.�And if you could turn to page 1514� �of the exhibit, which has the Bates stamp in the15� �lower right-hand corner of 338.16� � � �A.�Yes.17� � � �Q.�And at the top it says -- I'm sorry.18� �Let's go back to page 14, just so we can follow19� �the headings.20� � � � � �That -- that's a heading on page 14 that21� �says, "eSchool Review"?22� � � �A.�Yes.23� � � �Q.�Okay.�And then if we turn to where we24� �were looking at page 15, the first paragraph
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�1� �says, "When reviewing an eSchool, the reviewer�2� �shall follow all the review procedure letters in�3� �the FTE review checklist, incorporating these�4� �specific eSchool additions/suggestions," and�5� �then there's a number of items listed on page 15�6� �and 16; is that right?�7� � � �A.�Yes.�8� � � �Q.�Okay.�And -- and you would have�9� �reviewed this content at some point in time?10� � � �A.�Yes.11� � � �Q.�Okay.�And this is where, consistent12� �with the PowerPoint presentation, it's made13� �clear that the student durational and engagement14� �records are going to be reviewed as part of the15� �FTE review process?16� � � �A.�Say that again.17� � � �Q.�Sure.18� � � �A.�I'm not sure I understand your question.19� � � �Q.�When we looked at the PowerPoint20� �presentation, it identifies that there's going21� �to be changes from past to present, and those22� �changes indicate that there's going to be a23� �focus on enroll -- login records and student24� �engagement records, right?
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�1� � � �A.�Yes.�2� � � �Q.�Okay.�And the provisions of the 2016�3� �manual that specifically address those subjects�4� �are set forth on page 15 and 16; is that right?�5� � � �A.�I don't know if they're in conjunction�6� �with each other.�You know, they're two�7� �different documents.�8� � � �Q.�Well, I understand they're two different�9� �documents.�I'm trying to find out is the10� �provisions of the 2016 manual that indicate that11� �login records and student engagement records are12� �to be reviewed as part of the FTE review process13� �are set forth, as you understand it, on pages 1514� �and 16 of the 2016 FTE review manual?15� � � �A.�I think the -- the PowerPoint was more16� �of a how -- how-to, because that's -- it could17� �be difficult to determine how you're going to18� �look at those hours and how you're going to come19� �up with a formula, whether they have full-time20� �equivalents.�I guess that's the way I looked at21� �the PowerPoint presentation, as opposed to this.22� � � �Q.�Well, I'm not -- maybe I'm not following23� �your answer, but let me ask a better question.24� � � �A.�Okay.
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�1� � � �Q.�The provision of the 2016 FTE review�2� �manual that sets forth the requirement that a�3� �FTE reviewer measure logins and student�4� �engagement is set forth on pages 15 and 16 of�5� �the manual?�6� � � �A.�You said FY15 or '16?�This is '16.�7� � � �Q.�I said '16, I believe.�8� � � �A.�Okay.�I thought you said '15.�9� � � �Q.�The provisions of the 2016 FTE review10� �manual that sets forth the requirements that an11� �FTE reviewer measure login and student12� �engagement is set forth on pages 15 and 16 of13� �the manual?14� � � �A.�Yes.15� � � �Q.�And we can agree that pages 15 and 16 of16� �the FTE review manual are new for that year, new17� �for that manual?18� � � �A.�I haven't compared them to the '1519� �manual to see what the changes would be.20� � � �Q.�You never went back and compared the21� �two?22� � � �A.�No, I don't think so.23� � � �Q.�And are you saying that as part of any24� �discussions with -- that occurred at ODE, that
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�1� �no one would have taken the opportunity to�2� �advise the community coordinators about the�3� �specific changes between the '15 and the '16�4� �manual?�5� � � �A.�We were moved on to the '16 manual until�6� �we were told sometime in January we needed to�7� �use the '15 manual.�8� � � �Q.�Okay.�My -- my question was that -- at�9� �any point in time, did ODE take the opportunity10� �to share with you, and others within your peer11� �group, what the specific changes were between12� �the '15 and the '16 manual?13� � � �A.�I -- I don't recall.14� � � �Q.�What you do recall is that it was15� �communicated to you by Mr. Loew that there was,16� �in '16 of the -- for the first time, a17� �requirement that you look at as part of an FTE18� �review, login records and durational records?19� � � �A.�It was the first time they were telling20� �us that that's what we needed to do, yes.21� � � �Q.�Now, a moment ago you indicated that the22� �FTE manual for 2016 you were preparing to use23� �and then you were told to use the 2015 manual?24� � � �A.�Yes.
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�1� � � �Q.�And that was communicated to you in�2� �January 2015?�3� � � �A.�I -- I think so.�Because when we first�4� �started scheduling the reviews, I think we were�5� �still using '16 or planning on using '16, and�6� �prior to the ECOT review, we were told to go�7� �back and -- some agreement had been reached and�8� �we were going to be using FY15.�9� � � �Q.�Who -- who advised you of that fact?10� � � �A.�I think that would have been Aaron11� �Rausch.12� � � �Q.�Was that something he would have shared13� �with you at an area coordinator meeting?14� � � �A.�It might have been an area coordinator15� �meeting or because of the timing of all the16� �discussions that were going on, it may have been17� �an email or a phone call.18� � � �Q.�You were told to use the 2015 review19� �manual in conducting the -- you were told to use20� �the 2015 FTE review manual in conducting the FTE21� �reviews of community schools in 2015-2016 school22� �year?23� � � �A.�Yes.24� � � �Q.�Do you know whether or not as of January
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�1� �2016 what we've marked as the 2016 FTE review�2� �manual had been posted and made available to�3� �community schools?�4� � � �A.�Do I know whether it was?�5� � � �Q.�Yes, sir.�6� � � �A.�No.�7� � � �Q.�Do you know the manner by which the FTE�8� �review manuals for a partic -- that are marked a�9� �particular year are promulgated or disseminated10� �to community schools?11� � � �A.�No.12� � � �Q.�Is there anything, as part of your job13� �responsibilities, by which schools within your14� �district you take responsibility or ownership15� �for ensuring that they're advised as to what16� �standards they're going to be audited by before17� �the start of the school year?18� � � �A.�No.19� � � �Q.�Did Mr. Rausch or anyone else at ODE20� �explain to you specifically why you were being21� �provided instructions to discontinue using the22� �2016 review manual?23� � � �A.�No.24� � � �Q.�And separate and apart from any
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�1� �communications from Mr. Rausch or any -- anyone�2� �within his offices, was there anyone at ODE�3� �that -- or any other source -- that communicated�4� �to you why there was a change in the particular�5� �manual that would be utilized?�6� � � �A.�No.�Just an awareness that there was�7� �lots of discussion between community schools and�8� �ODE's office.�9� � � �Q.�And -- and what is the -- what awareness10� �did you have in the first quarter 2016?11� � � �A.�Awareness meaning when did I know that12� �that was going on?13� � � �Q.�Well, you -- you indicated in response14� �to a prior question that you had an awareness15� �there were a lot of discussions occurring16� �between community schools and ODE's office.�Let17� �me start first by asking you, how are you aware18� �of those discussions?19� � � �A.�Okay.�Probably coordinator meetings,20� �whenever the coordinator meetings would take21� �place, if there was some confusion about what22� �was going to take place or which one we were23� �going to use.�It seems to me that it all24� �stemmed from my putting together the letter with
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�1� �ECOT and saying, hey, we're going to be out�2� �there doing this review.�But I -- I can't place�3� �exactly when -- when all that took place, you�4� �know, how -- how quickly they were having�5� �discussions.�6� � � � � �For example, the reviews were scheduled�7� �and then canceled and changed a couple times�8� �because of discussions that I was aware of that�9� �were going on between ECOT and ODE.10� � � �Q.�Well, did you have discussions with11� �anyone at Findlay Digital regarding whether the12� �2015 or the 2016 FTE review manual would be13� �utilized?14� � � �A.�I'm sure I did.15� � � �Q.�And what do you -- who do you recall16� �having such communications with?17� � � �A.�Sandra White.18� � � �Q.�And Ms. White holds what position?19� � � �A.�She's the superintendent for Findlay20� �Digital.21� � � �Q.�And do you recall what you would have22� �communicated to Ms. White in regard as to the23� �manual that was going to be applicable?24� � � �A.�No, only that that's the manual we would
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�1� �be using.�2� � � �Q.�Do you know -- did she indicate whether�3� �she had a copy of the manual?�4� � � �A.�Of the '15 manual?�5� � � �Q.�Yes.�6� � � �A.�No.�7� � � �Q.�Did she indicate whether she had seen�8� �the 2016 manual?�9� � � �A.�No.10� � � �Q.�Did she -- did the two of you have any11� �communications regarding the 2016 manual?12� � � �A.�No, only my letter would have advised13� �her that there were changes.14� � � �Q.�Changes in what?15� � � �A.�In counting of hours.16� � � �Q.�That you would have advised Ms. White in17� �your cover letter to her about the 2016 FTE18� �review that for the first time there would be a19� �counting of hours?20� � � �A.�I believe so.21� � � �Q.�And would you have had any discussions22� �with anyone at Ohio Virtual Academy regarding23� �whether the 2015 or 2016 manual would be24� �utilized this year?
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�1� � � �A.�No.�2� � � �Q.�And that's because that particular�3� �institution was not scheduled for an FTE review?�4� � � �A.�That's correct.�5� � � �Q.�Did -- have you had discussions at any�6� �point in time with anyone at Ohio Virtual�7� �Academy about the consideration of login or�8� �durational records?�9� � � �A.�No.10� � � �Q.�And other than advising Ms. White that11� �there would be a counting of hours, did you have12� �any other rec -- recollection of any discussions13� �with her about the subject of durational or14� �online records being considered as part of the15� �FTE review of her school that year?16� � � �A.�No.17� � � �Q.�Did you complete the FTE review of18� �Findlay Digital this year?19� � � �A.�Yes.20� � � �Q.�And how many students does Findlay21� �Digital have, roughly?22� � � �A.�Oh, I'm thinking 150, 170.23� � � �Q.�Is that an FTE review that's conducted24� �in one day or --
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�1� � � �A.�Yes.�2� � � �Q.�Would you do that by yourself, or did�3� �you have assistance?�4� � � �A.�I did that one by myself.�5� � � �Q.�And when there's 150 to 170 students,�6� �how many files do you actually review?�7� � � �A.�25.�8� � � �Q.�And did Findlay Digital make available�9� �to you durational records?10� � � �A.�They attempted to.11� � � �Q.�What type of records did Findlay Digital12� �attempt to make available to you that relate to13� �duration of student engagement or student14� �engagement in general?15� � � �A.�They had six staff members that came in16� �and they were accessing different learning17� �modules that they said had student information.18� �And Sandra White collected all of those for each19� �student that I had -- of the 25 that I had20� �selected.21� � � �Q.�And did those records document the22� �amount of time that each student spent on a23� �computer during the course of each individual24� �day?
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�1� � � �A.�That's what she said, yes.�2� � � �Q.�Is that what you concluded?�3� � � �A.�For the ones that had it, yes.�4� � � �Q.�Excuse me?�5� � � �A.�For the students that -- that had it.�6� �11 -- 11 of the 25 students did not have close�7� �to the hours they needed.�8� � � �Q.�And so of the -- setting aside the 11,�9� �the remaining 14 students, did Findlay Digital10� �provide, from your perspective, sufficient11� �documentation reflecting the student spent a12� �sufficient number of time on the computer on a13� �daily basis?14� � � �A.�They provided total hours to me.15� � � �Q.�Total hours encompassing what, please?16� � � �A.�Whatever modules they were working from,17� �identified five or six modules that they had18� �shared with me where the students would have19� �logged hours.20� � � �Q.�And with respect to what they shared21� �with you in terms of total hours, did that22� �satisfy the requirements that you were seeking23� �to apply?24� � � �A.�That's what I reported.
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�1� � � �Q.�As you reported to your supervisors�2� �that -- or supervisor that the Findlay Digital�3� �had provided sufficient documentation of student�4� �engagement for 14 of the students?�5� � � �A.�Yes.�6� � � �Q.�And did your supervisors agree with you?�7� � � �A.�I don't -- I don't know.�8� � � �Q.�And with respect to the remaining 11�9� �students at Findlay Digital, was there any10� �discussion between you and Findlay Digital11� �representatives as to whether those students had12� �records available from other sources to document13� �their time?14� � � �A.�I recommended to them that -- that they15� �continue to try to gather the information.�It16� �seemed like they were having difficulty17� �accessing some of their documents.18� � � �Q.�And this distinction between the 1119� �students and the 14 students that comprise the20� �total 25, was that as part of your preliminary21� �or your final FTE review?22� � � �A.�Final.23� � � �Q.�And you completed your final FTE review24� �of Findlay Digital when, please?
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�1� � � �A.�Now you're taxing my memory again.�It�2� �would have been in July, I believe.�3� � � �Q.�And then your report -- your final FTE�4� �report on Findlay Digital would have been�5� �completed when, please?�6� � � �A.�The final report that I did?�7� � � �Q.�Yes, sir.�8� � � �A.�I -- I don't know without looking at my�9� �records.10� � � �Q.�Would you have done so at least by11� �today?�It's been completed, right?12� � � �A.�Yes, it's been completed.�I've sent it13� �out to Findlay Digital.14� � � �Q.�And with respect to the 11 students that15� �you've identified as bringing insufficient16� �documentation, did Findlay Digital indicate that17� �they, in the ordinary course, would maintain18� �records that would allow them to extract that19� �data for your review?20� � � �A.�I'm sorry, could you ask me that one21� �again?22� � � �Q.�Sure.�During the course of your23� �discussions with Findlay Digital with respect to24� �the 11 students that you identified as having
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�1� �insufficient documentation, did Findlay Digital�2� �indicate that in the ordinary course, it does�3� �maintain records that would allow them to track�4� �the student engagement on a duration basis?�5� � � �A.�Are you asking me if they have those�6� �records and just couldn't find them?�7� � � �Q.�Let's start there.�8� � � �A.�They didn't indicate that.�9� � � �Q.�Okay.�Did they indicate whether those10� �are the type of records they typically maintain?11� � � �A.�No.�Sandra White had indicated when we12� �first started that they would have trouble13� �getting those records together.14� � � �Q.�And would have trouble getting those15� �records together, did she indicate that was true16� �for the entire student population or 25 that you17� �were reviewing?18� � � �A.�Yes.19� � � �Q.�That is, the superintendent for Findlay20� �Digital communicated to you that as part of the21� �FTE review, it would be difficult for Findlay22� �Digital to make the documentation available23� �because in the ordinary course, they did not24� �maintain records documenting student engagement?
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�1� � � �A.�My recollection was that she said they�2� �were working on a program that would collect all�3� �that for them and they would have it ready next�4� �year, but -- but this year was going to be a�5� �task to get all that pulled together on a given�6� �day when I would ask for it.�But they did make�7� �an attempt to do that.�8� � � �Q.�So did the superintendent for Findlay�9� �Digital communicate to you, at least that for10� �the school year 2015-2016, they did not have a11� �program in place that tracked, in the regular12� �course, student durational time?13� � � �A.�Yes.14� � � �Q.�Okay.�And so that was a program they15� �were working on for the 2016-2017 school year?16� � � �A.�Yes.17� � � �Q.�And would she have communicated that to18� �you prior to the commencement of the first FTE19� �review for the 2015-2016 school year?20� � � �A.�That they would have difficulty --21� � � �Q.�Yes, sir.22� � � �A.�-- with that?�Yes.23� � � �Q.�Were you made aware of -- through your24� �discussions in these area coordinator
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�1� �meetings -- whether or not other eSchools were�2� �in a similar situation that had been�3� �communicated to you by Findlay Digital, that�4� �they did not maintain the type of records that�5� �ODE was now seeking as part of the 2016 FTE�6� �review?�7� � � �A.�Was I made aware by other area�8� �coordinators --�9� � � �Q.�Yes, sir.10� � � �A.�-- that other eSchools had difficulty?11� � � �Q.�Yes, sir.12� � � �A.�I think there was a general sense that13� �that was the case.14� � � �Q.�That is, as part of the area coordinator15� �meetings, was there a consensus shared among the16� �coordinators that the eSchools would not have17� �available for the department's review the type18� �of documentation that the ODE was seeking to19� �review for the first time in 2016?20� � � �A.�Yes.21� � � � � �MR. COLE:�Objection; foundation.22� � � � � �You can answer.23� �BY MR. LITTLE:24� � � �Q.�And was it also part of the consensus
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�1� �that was shared by the area managers at these�2� �meetings that specifically the eSchools that�3� �were going to be subject to FTE reviews did not�4� �have in their possession, as part of the regular�5� �course, records documenting a student's duration�6� �of student engagement online?�7� � � �A.�I don't know if there's consensus. I�8� �mean, we didn't take a vote.�I don't know if�9� �there was consensus.10� � � �Q.�Let me ask a slightly -- a different11� �question.12� � � �A.�Okay.13� � � �Q.�During the area coordinator meetings,14� �was there discussion that the eSchools likely15� �did not have in their possession the type of16� �documentation the department was looking for as17� �part of its 2016 FTE reviews as specifically18� �student engagement records?19� � � �A.�Yes.20� � � �Q.�Okay.�And as part of these area21� �coordinator meetings, were there any -- excuse22� �me.�Was there a single eSchool that was23� �identified by any of your peers that was likely24� �to have the type of records that the department
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�1� �was looking for for the first time starting in�2� �2016?�3� � � �A.�No, not that I recall hearing, no.�4� � � �Q.�So was the expectation, then, from the�5� �discussions that occurred in the area�6� �coordinator meetings is that the eSchools that�7� �were being audited in -- for the 2015-2016�8� �school year would, in fact, not have the records�9� �you were looking for?10� � � � � �MR. COLE:�Objection.�Vague as to the11� �expectation.12� � � �A.�Can you ask me that again?13� � � �Q.�Sure.�Was it the expectation, then,14� �that was shared among the area coordinators that15� �the schools that were going to be subject to the16� �FTE review for the 2015-16 school year, that17� �those schools would likely not have the18� �documentation being sought by F -- by ODE as19� �part of the FTE review process?20� � � � � �MR. COLE:�Same objection.21� � � �A.�Whose expectation are you suggesting?22� � � �Q.�Well, I'll ask it more bluntly.�Sir,23� �when you started the FTE reviews for the24� �eSchools within your district, did you have any
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�1� �reason to believe that either Findlay Digital or�2� �ECOT maintained in its possession records�3� �tracking the type of data that ECOT was seeking�4� �for the first time in 2016?�5� � � �A.�I expected that they did not.�6� � � �Q.�Okay.�And was -- were there any�7� �eSchools that any of your peers communicated�8� �that they thought would have that type of�9� �documentation at an eSchool for 2015-2016 school10� �year?11� � � �A.�I didn't hear that from any of the12� �coordinators.13� � � �Q.�Okay.�So given that it was -- and the14� �fact that it was your expectation that the15� �eSchools would not have this type of data, was16� �that something you shared with your peer group17� �at these meetings?18� � � �A.�I think I would have shared that with19� �Cody Loew.20� � � �Q.�Okay.�Do you recall whether it was also21� �shared at the area coordinator meetings?22� � � �A.�I don't recall specifically.23� � � �Q.�Okay.24� � � �A.�My guess is that it would have been.
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�1� � � �Q.�That's fine.�Was there any -- or did�2� �any of the area coordinators -- strike that.�3� � � � � �We've been talking about eSchools, but�4� �the new requirements of looking at log on times�5� �and durational records would have also been�6� �applicable to other community schools?�7� � � � � �MR. COLE:�Objection.�Vague as to the�8� �requirements.�9� � � � � �Go ahead and answer if you understand10� �what he means.11� � � �A.�I could use a repeat on that one.12� � � �Q.�Sure.�So you told us that starting for13� �the 2016 FTE review, there was going to be a14� �requirement that you examine login records and15� �durational records --16� � � �A.�Uh-huh.17� � � �Q.�-- right?18� � � �A.�Yes.19� � � �Q.�Those requirements also would have also20� �been applicable to other community schools21� �beyond eSchools?22� � � �A.�Yes.23� � � �Q.�Okay.�And so other than Findlay Digital24� �and ECOT, are there other community schools that
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�1� �you conducted FTE reviews of in -- for the�2� �2015-2016 school year?�3� � � �A.�Yes.�4� � � �Q.�Okay.�And who were they?�5� � � �A.�I'm going to give you the ones I can�6� �think of off the top of my head.�7� � � �Q.�Sure.�8� � � �A.�Eagle Academy, Polly Fox, Horizon�9� �Science of Springfield.�There's two of them in10� �Toledo.�There's at least three more.�We did a11� �closing review, FTE review, on Great12� �Expectations.13� � � �Q.�When you say closing, what does that14� �mean?15� � � �A.�It means the school sponsor and the16� �school decided not to reopen, so when that17� �happens, we are asked to go out and do a final18� �FTE review similar to what we would do with the19� �regular final review, but it's just a onetime20� �look at their records.21� � � �Q.�Sure.�Thank you.22� � � �A.�I'm sorry, I'm drawing a blank.�There's23� �at least three other schools I think that I24� �would have done.
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�1� � � �Q.�So there were -- not holding you to the�2� �specific number, but roughly seven non-eSchool�3� �community schools that were also audited by you�4� �for 2015-2016 school year?�5� � � �A.�Yes.�And there would have been three�6� �other ones that between Ron Heitmeyer and I, we�7� �did the first review to cover Region 9.�There�8� �was no coordinator in Region 9 the first part of�9� �'16, and so we were asked to also do some of10� �those reviews.11� � � �Q.�So you then have a total for the12� �2015-2016 of ten FT -- FTE reviews of13� �non-eSchool community schools?14� � � �A.�Yes.�Don't hold me to the exact15� �number --16� � � �Q.�Sure.17� � � �A.�-- and then we're good.18� � � �Q.�And with respect to those ten19� �non-eSchool community schools, would you have20� �reviewed durational and login records?21� � � �A.�No.�They -- they wouldn't have22� �durational login records.�They would be -- they23� �would be brick-and-mortar-type schools where the24� �majority of the time the students were expected
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�1� �to be at the school.�So we would have been�2� �looking at attendance records to see what days�3� �they were there, what days they were not there.�4� � � �Q.�So with respect to those ten community�5� �schools, was the FTE funding based upon�6� �attendance?�7� � � �A.�Yes.�8� � � �Q.�As opposed to student engagement?�9� � � �A.�Yes.10� � � �Q.�And as part of the FTE review for those11� �ten schools, provided the student didn't violate12� �the 105-hour rule, whether the student was13� �present or engaged did not have a adverse impact14� �in any fashion on the community school's FTE15� �funding; is that right?16� � � �A.�Yes.17� � � �Q.�During the area coordinator meetings,18� �was there any pushback or disagreement expressed19� �by any of the area coordinators about the new20� �standards that were being rolled out by ODE?21� � � �A.�Pushback meaning?22� � � �Q.�Well, did -- given that, for example,23� �you understood that the schools with -- that you24� �would be reviewing likely did not have those
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�1� �type of records that are being asked for by ODE�2� �in the first part of -- for the first time in�3� �2016, did you question or challenge or raise�4� �issues with applying that methodology?�5� � � �A.�I expressed my concern about it.�6� � � �Q.�And what concern did you express?�7� � � �A.�That they wouldn't have that�8� �documentation.�9� � � �Q.�And that's what you shared with Cody10� �Loew?11� � � �A.�Yes.12� � � �Q.�Did you share that with Aaron Rausch, as13� �well?14� � � �A.�I -- I would think that I would have. I15� �don't recall specifically.�I'm sure that I16� �would have shared it with Cody Loew.17� � � �Q.�Other than expressing to Mr. Loew that18� �the schools that you would be reviewing that19� �year likely did not have the new documentation,20� �did you express anything else to him about21� �whether that made sense, whether this was right,22� �whether there was fair notice, anything like23� �that?24� � � �A.�Not that I recall.
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�1� � � �Q.�Was there discussions in any of these�2� �meetings or any other meetings that you�3� �participated in about whether or not there had�4� �been sufficient notice provided by the�5� �Department of Education to the eSchools about�6� �the new standards that were being deployed?�7� � � �A.�Were there discussions within the�8� �coordinators?�9� � � �Q.�Yes.10� � � �A.�I'm sure there were general discussions.11� � � �Q.�And what do you recall?12� � � �A.�Just suggesting that it's -- it's going13� �to be difficult for them to show this14� �information.15� � � �Q.�That is, it's going to be difficult for16� �the eSchools to provide that type of17� �documentation?18� � � �A.�Yes.19� � � �Q.�And the reason it was going to be20� �difficult to provide that type of documentation21� �is because eSchools historically had not been22� �reviewed on that process -- on the basis?23� � � �A.�That -- that -- that would be my24� �reasoning for that, yes.
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�1� � � �Q.�Okay.�And was also another reason that�2� �was expressed as to why it was going to be�3� �difficult for the eSchools to comply is that�4� �there had not previously been documentation�5� �promulgated by ODE indicating that type of�6� �record or documentation should be created by the�7� �eSchool?�8� � � �A.�I don't know what documentation the�9� �eSchools had access to.�I mean, as far as what10� �they -- what manuals they had, I don't know.11� � � �Q.�Okay.�Fair enough.�Because again,12� �you -- you weren't responsible for issuing the13� �manuals?14� � � �A.�No, I was not.15� � � �Q.�Okay.�And otherwise weren't responsible16� �for issuing any other type of documentation to17� �the schools within your district as to what the18� �requirements or standards would be -- would be?19� � � �A.�No.�If a school requested a section of20� �the manual or something, occasionally we21� �would -- you know, if they wanted that, we would22� �send that out to them, but, you know, as a -- if23� �your question is as a standard rule do I send24� �the manuals out ahead of time to them, no, I do
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�1� �not.�2� � � �Q.�And do you have a recollection of any of�3� �the eSchools requesting any portion or provision�4� �of the manuals from you?�5� � � �A.�On occasion they would -- there would be�6� �a particular section if they were working on�7� �proofs of residence or something, a specific�8� �detail within the manual.�I'd say, well, let me�9� �copy off that section so you have it in front of10� �you.11� � � �Q.�Okay.�Did you ever refer any of the12� �schools within your district to any website or13� �other site for obtaining copies of the manual?14� � � �A.�No.15� � � �Q.�Do you know whether or not the FTE16� �review manuals were even posted by ODE on a17� �website?18� � � �A.�My awareness was that they were not.19� � � �Q.�When you expressed to Mr. Loew and20� �others, potentially, that you're concerned that21� �the schools within your district could not22� �comply with these new standards, what response23� �did he offer you?24� � � �A.�I didn't say they couldn't comply. I
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�1� �expressed my concern that they would have�2� �difficulty, that it would be hard for them.�3� � � �Q.�Okay.�Well, when you expressed that to�4� �him, what was his reaction?�5� � � �A.�I think -- I can't tell you exactly how�6� �he would have reacted other than, well,�7� �that's -- that's in -- in the law, they're�8� �supposed to be doing that.�9� � � �Q.�Is that what --10� � � �A.�I mean, that would be my recollection of11� �what he would have said to me.12� � � �Q.�And do you know what Mr. Loew's13� �experience was in conducting FTE reviews?14� � � �A.�No.15� � � �Q.�Did he ever indicate to you he had16� �experience with respect to FTE review issues?17� � � �A.�No.18� � � �Q.�Did you -- from any of your engagements19� �with him, did you draw any conclusions that20� �suggested he had experience in conducting FTE21� �reviews?22� � � �A.�No.23� � � �Q.�Were there other area coordinators that24� �suggested that these new standards should be
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�1� �deferred until notice is provided to the�2� �eSchools of the new standards?�3� � � � � �MR. COLE:�Object to use of the phrase�4� �the "new standards."�5� � � � � �If you know what he's referring to, go�6� �ahead.�7� � � �A.�Yeah, the standards were there.�I mean,�8� �the ability to look at those documents was there�9� �in the '15 manual.10� � � �Q.�Oh, we're going to go through that this11� �afternoon and I'll test your memory on that.12� � � �A.�Okay.13� � � �Q.�But you told me that it was only in14� �January 2016 that instructions were provided by15� �ODE that login and durational records would be16� �examined; is that right?17� � � �A.�Yes.18� � � �Q.�Okay.�So that's what I referred to as19� �the new standards.20� � � �A.�Okay.21� � � �Q.�Was there anyone within the group, to22� �your knowledge, of the area coordinators that23� �suggested that the new standards should be24� �deferred for a year to provide notice or an
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�1� �opportunity to educate the eSchools as to what�2� �the new standards are?�3� � � �A.�No.�4� � � �Q.�And in the course of your discussions�5� �with Mr. Loew, whether you expressed it or not,�6� �did -- were you of the view that the eSchools�7� �should be at least provided notice of the�8� �expectations before they were applied?�9� � � �A.�To give notice before I came out there,10� �you mean?11� � � �Q.�No.�My -- my question's more basic.12� � � � � �The 2016 manual was, to your knowledge,13� �first promulgated in January 2016?14� � � �A.�The -- the new standards -- the rules15� �were in the previous manual in '15.16� � � �Q.�The new standards that you've identified17� �for me, sir -- strike that.�Let's go back.18� �I'll make it even more basic.19� � � � � �Prior to January 2016, I think you told20� �me this, but please confirm, that you're not21� �aware of any eSchool, prior to that time, that22� �had been requested to provide online or23� �durational records as part of an FTE review?24� � � � � �MR. COLE:�Objection.�Misstates his
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�1� �testimony.�2� � � �A.�I don't -- I don't know that.�3� � � �Q.�Do you -- are you aware of any?�4� � � �A.�I'm not aware of any.�5� � � �Q.�And in the course of any of the�6� �conversations that occurred September 2015�7� �forward with any of your area coordinators or�8� �any of your supervisors, did any one of them�9� �identify a single eSchool that prior to 2016 had10� �been asked to provide login and durational11� �records as part of an FTE review?12� � � �A.�I'm not aware of that.13� � � �Q.�Okay.�No one communicated it to you?14� � � �A.�No.15� � � �Q.�And if I understand your testimony,16� �then, given the fact that there was now going to17� �be a requirement that that type of data be18� �provided, your testimony is you didn't give any19� �thought, if you will, to whether or not it made20� �sense that that rule be applied in the middle of21� �a school year, 2015-2016?22� � � �A.�I expressed some concern.23� � � �Q.�The concern you expressed, was it in the24� �context of, it didn't make sense to apply these
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�1� �rules for the first time in the middle of a�2� �school year?�3� � � �A.�No, I would have just had concern�4� �that -- that to do this in the middle of a year�5� �with ECOT, and I was going to be responsible to�6� �do ECOT, would be difficult.�7� � � �Q.�Okay.�Difficult because it's true that�8� �you did not have any expectation in the first�9� �part of 2016 that ECOT would have the type of10� �documentation that ODE was now seeking?11� � � �A.�That's a fair assessment.12� � � �Q.�Okay.�And your expectation, then, is13� �that if these new standards were employed, that14� �ECOT would, in fact, not be able to satisfactory15� �the requirements now being imposed by the16� �department?17� � � �A.�That would have been my concern.18� � � �Q.�Okay.�And your concern and expectation,19� �then, and certainly in January 2016, is that the20� �FTE review for ECOT would be, in fact, a21� �negative review?22� � � �A.�Well, I was hoping that it would be23� �otherwise, but --24� � � �Q.�Realistically, you knew it would be
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�1� �negative?�2� � � �A.�I don't know that I knew it would be�3� �negative.�I had concerns about it --�4� � � �Q.�Okay.�5� � � �A.�-- not going well.�6� � � �Q.�And in terms of it not going well, then�7� �your expectation would be that if this�8� �particular course of action that was being�9� �instituted in January 2016 moved forward, that10� �ECOT would have significant exposure in terms of11� �repayment of funds to the Department of12� �Education?13� � � �A.�I didn't know that, no.14� � � �Q.�You knew that in an FTE review that if15� �adequate documentation is not supplied, that16� �there are financial consequences --17� � � �A.�Yes.18� � � �Q.�-- to a school?19� � � �A.�Yes.20� � � �Q.�Okay.�And so if you know that a school21� �doesn't maintain the type of records that you're22� �looking for, that in the ordinary course what23� �you're supposed to do is make a report to your24� �supervisor indicating that the FTE -- that a
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�1� �particular school is not entitled to a certain�2� �level of FTE credits?�3� � � �A.�Yes.�4� � � �Q.�Okay.�And if a school's not entitled to�5� �the FTE credits, then that school will then have�6� �an obligation to make repayment back to the�7� �Department of Education?�8� � � �A.�I was not at all sure what the�9� �department was going to do with information if10� �they found that that was the case.11� � � �Q.�Have you ever seen a situation where a12� �school who did -- who failed an audit and was13� �found not to -- was found to have received an14� �overpayment, because they're not entitled to all15� �the FTE credits, did not have to repay the funds16� �to the department?17� � � �A.�I really haven't paid attention to that.18� � � �Q.�Okay.�Is that because all of the19� �schools that you've conducted FTE reviews of20� �prior to 2016, in fact, passed their audits?21� � � �A.�I don't know if --22� � � � � �MR. COLE:�I'm going to object to the23� �use of the term audit.24� � � �A.�I don't know if it's a pass/fail --
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�1� � � �Q.�Have --�2� � � �A.�-- standard.�3� � � �Q.�Have each of the schools that have --�4� �that you audited or reviewed as part of an FTE�5� �review, prior to 2016, provided the�6� �documentation to your satisfaction to support�7� �the FTE credits that school was receiving?�8� � � �A.�Not all.�9� � � �Q.�Okay.�And for the schools that did not,10� �were adjustments made, then, in the funding that11� �that school received?12� � � �A.�Yes, if -- if they indeed couldn't find13� �the -- you know, the documentation or they14� �couldn't correct what -- what we had identified.15� � � �Q.�Okay.�So was it always the case in your16� �experience that to the extent a school could not17� �provide sufficient documentation to your18� �satisfaction to support the FTE credit, that19� �there would then be a negative adjustment made20� �to the school's funding as a result of the FTE21� �review?22� � � �A.�Yes.23� � � �Q.�And was there ever an exception that you24� �can think of to that rule?
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�1� � � �A.�I audited a school in Toledo a number of�2� �years ago where I said I couldn't do the audit�3� �and record, or they didn't have sufficient�4� �documentation, and I referred it to ODE. I�5� �don't know what they did with that.�6� � � �Q.�Okay.�So as to each of the schools that�7� �you're aware of where there has been a -- an�8� �instance of insufficient documentation to�9� �support the FTE funding, there has been a10� �negative adjustment made in the amount of monies11� �to be paid to the school?12� � � �A.�Yes.13� � � �Q.�Okay.�And did anyone suggest in 201614� �there would be any different approach applied in15� �how the FTE reviews are conducted this year?16� � � �A.�In terms of not meeting the standard,17� �you mean?18� � � �Q.�That is, did anyone at ODE suggest that19� �to the extent an eSchool failed to provide20� �sufficient documentation to support the FTE21� �funding -- funding that had been paid or was22� �required, that there would be a different23� �approach followed this year than in the past?24� � � �A.�I'm not aware of that.
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�1� � � �Q.�Okay.�And so you've proceeded on the�2� �assumption in 2016 that to the extent an eSchool�3� �fails to provide the requisite documentation�4� �being requested by ODE to support the FTEs, then�5� �there will be an adverse financial consequence�6� �for that eSchool?�7� � � �A.�Yes.�8� � � �Q.�And that eSchool will either have to�9� �repay the funds or future distributions to that10� �eSchool will be reduced in the future?11� � � �A.�I'm not sure how they would handle that.12� � � �Q.�You're not familiar with the mechanics13� �of it?14� � � �A.�No, I'm not.15� � � �Q.�What you are familiar with is that to16� �the extent the funding requirements are not17� �satisfied as they're being determined by ODE18� �now, in terms of the documentation required,19� �that the school will have to repay the money in20� �some form?21� � � �A.�I assume so.22� � � �Q.�Okay.�And there's never been any23� �suggestion to you by anyone at ODE that a24� �different approach would be followed?
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�1� � � �A.�Speculation on our part that maybe --�2� �maybe there would be adjustments.�3� � � �Q.�Speculation there would be adjustments?�4� � � �A.�On the part of coordinators, maybe --�5� �maybe there will be adjustments made or some�6� �agreement reached on how we're going to do this.�7� � � �Q.�Has there been a suggestion by any�8� �supervisor or anyone at management at ODE that�9� �they will follow a different approach than what10� �historically has been applied?11� � � �A.�No.12� � � �Q.�And when you conducted, for example, the13� �FTE review of ECOT in March, did you make any14� �preliminary observations as to the financial15� �consequences to ECOT?16� � � �A.�No.17� � � �Q.�Was there anyone you talked to about the18� �financial consequences?19� � � �A.�No.20� � � �Q.�So when you conducted the -- you took21� �the FTE review preliminary results from the22� �first meeting and shared them with your23� �supervisor, your testimony is you didn't have24� �discussions with anyone as to what would happen
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�1� �with these numbers?�2� � � �A.�No.�3� � � �Q.�No one showed you what the magnitude of�4� �the figures would be?�5� � � �A.�No.�6� � � �Q.�Did you have -- irrespective of what you�7� �shared with anyone, did you, in your -- in your�8� �own mind, come up with any figures?�9� � � �A.�No.10� � � �Q.�And is there a reason you did not -- you11� �did or did not?12� � � �A.�Is there a reason why I did or did not?13� � � �Q.�Yes.14� � � �A.�Speculate on the numbers?15� � � �Q.�Yes.16� � � �A.�No.17� � � �Q.�You, however, knew that from the data18� �that you had collected from the first FTE review19� �at ECOT that it would be a substantial number20� �given the sample you had taken?21� � � �A.�No, I wasn't convinced of that.22� � � �Q.�Is that because you believed ECOT had23� �provided the documentation at the March review24� �that ODE is now seeking for the first time in
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�1� �January?�2� � � �A.�Well, there was some suggestion from�3� �ECOT that they might be able to gather those�4� �documents, but it would be a monumental task.�5� � � �Q.�Okay.�Are you saying that as part of�6� �the review that was conducted in March 2016,�7� �that ECOT did not have available for you the�8� �type of information you were -- the department�9� �was now seeking for the first time in January10� �2016?11� � � �A.�Yes.12� � � �Q.�And if they were unable to satisfy those13� �deficiencies, we could agree, then, you14� �understood that ECOT would not be eligible for15� �the FTE funding for those students for which the16� �documentation did not exist?17� � � �A.�Yes.18� � � �Q.�And that, in fact, is what's spelled out19� �in the F -- the 2015 FTE manual, is it not?20� � � �A.�What was spelled out?21� � � �Q.�That if you do not have the sufficient22� �funding then you're not entitled to the FTE23� �credit for that particular student.24� � � �A.�Yes.
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�1� � � �Q.�Okay.�So once we know what the�2� �standards are to be applied in conducting the�3� �FTE review, assuming they're uniformly applied�4� �to all eSchools, we should be able to figure out�5� �what the financial consequences are to that�6� �particular school?�7� � � �A.�I would agree.�8� � � �Q.�That is, the fact that you conducted the�9� �FTE review versus one of your peers, it still10� �should be the same result irrespective of who11� �personally is conducting the review?12� � � �A.�If they're -- yes.13� � � �Q.�That is, if in fact the standards set14� �forth in the manual are being uniformly applied15� �by each of the area coordinators, we should have16� �the same result for a particular school based17� �upon a review irrespective of what individual18� �person conducted the review?19� � � �A.�Yes, I would say so.�Except that you're20� �not reviewing all the files, so how you proceed21� �from the fact that you find out that your sample22� �of 500 contained students that didn't have those23� �numbers, I'm not sure how that's dealt with at24� �the department when that's reported.�In other
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�1� �words, I didn't review all the files. I�2� �reviewed 750 files.�3� � � �Q.�And that's because what happens in the�4� �ordinary course is that a sample is taken and�5� �then the results from that sample are then�6� �extrapolated and applied to the entire student�7� �population?�8� � � �A.�I'm not aware of that.�9� � � �Q.�Is that not how it did for the type of10� �analysis you did for Findlay Digital?11� � � �A.�No.12� � � �Q.�You did not have that type of13� �application ever as part of an FTE review?14� � � �A.�I'm not sure I understand what you mean15� �by "application."16� � � �Q.�As part of an FTE review, isn't it true17� �that you never review all of the student files?18� � � �A.�That's true in my case.�I've never19� �reviewed all the student files unless it was a20� �school that had 25 to 30 students --21� � � �Q.�Sure.22� � � �A.�-- you know, then we would -- I would23� �just do them all.24� � � �Q.�So if it's a school that has at least
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�1� �100 students, it's been your approach, since�2� �you've been conducting FTE reviews, to only�3� �review a sampling of the students?�4� � � �A.�Yes.�5� � � �Q.�Okay.�6� � � �A.�With 100, you would do 25 kids, is the�7� �minimum.�8� � � �Q.�Okay.�And -- and what happens in the�9� �case of ECOT, for example, is that with respect10� �to each of the FTE reviews that are conducted,11� �you provide the student identification numbers12� �to ECOT of the -- to identify the sample13� �population?14� � � �A.�Yes.15� � � �Q.�Okay.�And that's what you provide to16� �ECOT prior to the conducting of the review in17� �the first instance?18� � � �A.�Yes.19� � � �Q.�Okay.�And then based upon those review20� �results, then you're able to communicate to your21� �supervisors what the -- what your perspective is22� �on whether or not there's FTE credits should be23� �paid for those particular sample students?24� � � �A.�Well, what we would report -- what we
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�1� �were told to report this year was report what�2� �you see, and -- and then that would be�3� �evaluated.�4� � � �Q.�Is that different from what you've done�5� �in the past?�6� � � �A.�Yes.�7� � � �Q.�Okay.�So let's -- let's drill down on�8� �that a bit more.�In the past, share with us�9� �specifically what you would share with your10� �supervisor, based upon the review.11� � � �A.�Well, you would still report what you12� �see, but in the case of -- of these13� �requirements, when -- when asking a question14� �like, well, how -- how are we going to conduct15� �this review when we're only doing 750 students,16� �how's this going to be done, we would say --17� �they'd say to us, well, report what you see and18� �then we'll evaluate that.19� � � �Q.�Well, let's talk about prior to this20� �year, though.21� � � �A.�Okay.22� � � �Q.�What -- what's the report that you would23� �have provided to your supervisor?24� � � �A.�Whatever I found.
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�1� � � �Q.�Okay.�And would you made -- have made�2� �determinations as part of the review, prior to�3� �this year, as to, one, what you'd found, right?�4� � � �A.�Uh-huh.�5� � � �Q.�And then, two, would it also include�6� �whether or not there would have been an�7� �overpayment on the -- for the FTEs?�8� � � �A.�In small numbers, yeah.�I never ran�9� �across one where I had major findings that --10� �that needed drastic changes.�Most of them were11� �clerical-type things or documents that might be12� �missing, you know, so I don't recall that I ran13� �into many that needed massive change.14� � � �Q.�Okay.�That is, again, historically the15� �FTE reviews you've conducted, the schools tested16� �have been compliant?17� � � �A.�For the most part.18� � � �Q.�Okay.�And the noncompliance issues are19� �matters that were relatively minor or matters20� �that could be resolved?21� � � �A.�Yes.22� � � �Q.�Okay.�So this would be the first year23� �in which you would have issues with FTE reviews24� �in which you have schools that are noncompliant
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�1� �with the new standards promulgated by the�2� �department?�3� � � �A.�Yes.�4� � � �Q.�Okay.�5� � � �A.�For me.�6� � � �Q.�For you.�And for your -- your peer�7� �group, your other -- your peer group has�8� �expressed to you that the eSchools that are�9� �being audited or reviewed this year as part of10� �FTE review process have been noncompliant with11� �new standards promulgated by the department?12� � � � � �MR. COLE:�Object to "new standards13� �promulgated by the department."14� � � � � �Go ahead and answer if you know what he15� �means.16� � � �A.�I don't know what you mean by my peer17� �group.18� � � �Q.�Other area coordinators.�I -- let me19� �ask a better question.20� � � �A.�Okay.21� � � �Q.�So of the -- how many total districts22� �are there?23� � � �A.�Total regions?24� � � �Q.�Yes.
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�1� � � �A.�Ten.�2� � � �Q.�Ten regions.�And I think you told us�3� �one of those regions does not have a area�4� �coordinator?�5� � � �A.�They do now.�6� � � �Q.�They do now?�7� � � �A.�Yes.�8� � � �Q.�So we have ten different area�9� �coordinators?10� � � �A.�At least.11� � � �Q.�Okay.�Because some coord -- or some12� �regions have multiple area coordinators?13� � � �A.�Most have multiple area coordinators.14� � � �Q.�Okay.�And so of those area15� �coordinators -- excuse me.16� � � � � �Do you know in total how many eSchools17� �were subject to FTE reviews this year?18� � � �A.�No, I don't.19� � � �Q.�Okay.�Do you receive any type of20� �summary from ODE as to the results of the other21� �eSchools being subjected to an FTE review?22� � � �A.�No.23� � � �Q.�Have there been discussions within24� �the -- by the area managers that you've been a
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�1� �participant in, whether it's at these�2� �every-other-month meetings or otherwise, about�3� �the performance of the eSchools outside your�4� �region as part of the FTE reviews?�5� � � �A.�This year?�6� � � �Q.�Yes, sir.�7� � � �A.�No.�8� � � �Q.�Okay.�And so is it your testimony you�9� �don't know whether the other eSchools outside of10� �your region that were subject to FTE reviews11� �successfully produced documents consistent with12� �the new standards promulgated by the department13� �January 2016?14� � � �A.�Am I aware of other schools that didn't15� �meet the standards?16� � � �Q.�Yes, sir.17� � � �A.�No.18� � � �Q.�With respect to the FTE review manuals,19� �the different -- those different ones, do you20� �know whether those are promulgated each year?21� � � � � �MR. COLE:�Objection.22� � � �A.�Whether there's a new one made each23� �year?24� � � �Q.�Yes, sir.
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�1� � � �A.�I'm thinking there is, with minor�2� �revisions.�3� � � �Q.�Do you maintain copies of the -- the�4� �historical manuals?�5� � � �A.�Not on -- as a general rule, I don't�6� �keep more than the previous year's one.�7� � � �Q.�Okay.�8� � � �A.�Somebody does.�9� � � �Q.�Let me show you what I've marked as --10� �excuse me for a second, let me make sure you're11� �on this -- 43.�Let me know once you've had an12� �opportunity to review this.13� � � �A.�Okay.14� � � �Q.�Okay.�Do you recognize the email that's15� �on the second page of Exhibit 43 as one you16� �received by -- from Mr. Loew on January 27,17� �2016?18� � � �A.�Is my name on that one?19� � � �Q.�It is.�Your name appears --20� � � �A.�On the front part.�Yes.21� � � �Q.�Okay.�And if we look at the second page22� �of the exhibit, there's a number of bullets.�Do23� �you see those?24� � � �A.�Yes.
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�1� � � �Q.�And the bullet -- third bullet from the�2� �bottom says, "The updated FTE review manual is�3� �now available online.�Please communicate the�4� �key changes to eSchools and blended learning�5� �schools that you are reviewing for FY16.�We are�6� �also working with the Office of Quality School�7� �Choice to contact sponsors and schools."�8� � � � � �Do you see that?�9� � � �A.�Yes.10� � � �Q.�Okay.�And the FTE review manual there11� �that is referenced is the 2016 manual?12� � � �A.�Yes.13� � � �Q.�And based upon the directions provided14� �by Mr. Loew, did you contact eSchools and15� �blended learning schools to advise of the16� �changes?17� � � �A.�This -- this was in January.�It would18� �have been the time we would start writing the19� �letters and scheduling the meetings.20� � � �Q.�Okay.�Does that mean -- does that mean21� �you contacted them to advise them of the changes22� �that were -- were occurred in terms of what is23� �being reviewed?24� � � �A.�Yes.
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�1� � � �Q.�And were all your communications of�2� �these changes in writing or were those done�3� �orally, as well?�4� � � �A.�I think that when I did ECOT and Findlay�5� �Digital, I would have -- when I sent them their�6� �letter, I would have identified those -- the big�7� �change that I saw, which would have been the�8� �documentation needs.�9� � � �Q.�What are you referring to?10� � � �A.�I'm referring to the fact that they11� �needed to show hours.12� � � �Q.�Okay.�Sort of what we had seen in13� �Mr. Loew's PowerPoint presentation; is that what14� �you're referring to?15� � � �A.�I'm referring to the sections -- is it I16� �through G or H? -- that I pointed out to them17� �were new requirements, or that were going to be18� �reviewed.19� � � �Q.�Let me show you what I've marked as20� �Plaintiff's Exhibit 44.�The question's going to21� �be, do you recognize Plaintiff's Exhibit 44 as22� �an email that you sent on January 27, 2016, to23� �Ms. Barnes at ECOT?24� � � �A.�Yes.
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�1� � � �Q.�And you would have sent this in response�2� �to the directions you received by Mr. Cody [sic]�3� �on that same date, January 27, 2016?�4� � � �A.�Yeah, I would think so.�5� � � �Q.�And it says, "I am attaching some�6� �information that you will need for the upcoming�7� �review including the letter verifying the dates�8� �and documents that we will be looking at.�9� � � � � �"At your earliest convenience, could you10� �forward to me the following documents11� �electronically:"12� � � � � �And then there's 1, 2 and 3 listed13� �there; is that right?14� � � �A.�Yes.15� � � �Q.�The copy of the contract with your16� �sponsor that's referenced as item number 3, do17� �you typically, as an FTE reviewer, review the18� �sponsor contract with the eSchool?19� � � �A.�In the last few years, I think that's20� �been something we were told to do.21� � � �Q.�Okay.�And what do you review that22� �contract for?23� � � �A.�Just to see what it says about the24� �attendance and about the -- you know, how
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�1� �they're conducting the program.�Just a general�2� �review.�3� � � �Q.�Okay.�4� � � �A.�To make sure we have an understanding of�5� �what kind of school it is and what they're�6� �trying to do.�7� � � �Q.�Okay.�Under item number 3 it says,�8� �"Additionally, I wanted to call your attention�9� �to items I-K in the attached letter.�This10� �represents additional information that was not11� �reviewed five years ago that is now required in12� �our review process."13� � � � � �Do you see that?14� � � �A.�Yes.15� � � �Q.�And if we could then turn to the second16� �page of Exhibit 44, would this have been also17� �materials that you provided to ECOT on January18� �27, 2016?19� � � �A.�Is this -- you're saying is this what I20� �sent them?21� � � �Q.�Yes, sir.22� � � �A.�Yes.23� � � �Q.�And items I through K --24� � � �A.�Yes.
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�1� � � �Q.�-- those are -- those are the new items�2� �that are being reviewed for the first time?�3� � � �A.�Yes.�4� � � �Q.�These are the items that ODE made the�5� �decision to review for the first time in January�6� �of 2016?�7� � � �A.�Yes.�8� � � �Q.�And are you aware of any communication�9� �prior to your letter of January 27, 2016, to10� �ECOT that the documentation that is set forth in11� �items I through K of this summary would be12� �reviewed as part of the F -- 2015-2016 FTE13� �review?14� � � �A.�I don't -- I didn't -- I didn't make any15� �other communications to them prior to that.16� � � �Q.�Okay.�And are you aware of any other17� �communications from ODE to ECOT prior to January18� �27, 2016, advising or communicating that this19� �type of documentation would be reviewed as part20� �of an FTE review process?21� � � �A.�No.22� � � �Q.�And the items that are set there -- set23� �forth in items I through K as set forth in this24� �January 27, 2016, correspondence, those are the
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�1� �documentations that we would generally describe�2� �as student computer and durational records?�3� � � �A.�Yes.�4� � � �Q.�Or records reflecting specific student�5� �engagement?�6� � � �A.�Yes.�7� � � �Q.�And was this same form of letter then�8� �sent by you to Findlay Digital?�9� � � �A.�I -- I think so, yes.10� � � �Q.�And -- and with respect to the online11� �schools -- or, excuse me, eSchools that are12� �going to be audited for school year 2016-2017,13� �you already know which schools those are within14� �your district?15� � � �A.�From my list, yeah.16� � � �Q.�Yes.�And if I understand it, there's17� �only one other school -- eSchool in your18� �district or region?19� � � �A.�Yes.20� � � �Q.�Okay.�And is that school scheduled to21� �be reviewed this year?22� � � �A.�This coming year, yes.23� � � �Q.�Okay.�And have you already advised Ohio24� �Virtual Academy of these new changes?
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�1� � � �A.�No.�2� � � �Q.�And, I'm sorry, what's the size, from a�3� �ballpark standpoint, of Ohio Virtual Academy in�4� �terms of student population?�5� � � �A.�It's very similar to ECOT.�I think�6� �maybe a slight bit smaller.�15 -- I want to say�7� �thirteen to fifteen thousand.�8� � � �Q.�Is there an FTE manual in place for the�9� �2016-2017 school year?10� � � �A.�I don't know.11� � � �Q.�Have you been asked to participate in12� �any way in the creation of an FTE manual that13� �would be applicable for the 2016-2017 school14� �year?15� � � �A.�No.16� � � �Q.�And then how do you know whether Ohio17� �Virtual Academy -- strike that.18� � � � � �Do you know what standards will be19� �applied to Ohio Virtual Academy for school year20� �2016-2017 in conducting the FTE review?21� � � �A.�No.22� � � �Q.�And do you have any sense as to when23� �either you or any of the eSchools being subject24� �to FTE reviews in -- for school year 2016-2017
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�1� �would be advised of the applicable standards for�2� �the review?�3� � � �A.�No.�4� � � �Q.�And on what basis would you have, then,�5� �an expectation Ohio Virtual Academy will�6� �maintain certain records in the first half of�7� �the 2016-2017 school year if they have not been�8� �advised as to what the standards will be?�9� � � �A.�I -- I can't answer that.�I don't know.10� � � �Q.�With respect to Ohio Virtual Academy,11� �have you had any discussions with any of that12� �school's representatives in 2015-2016 time frame13� �regarding the department's expectations for14� �records?15� � � �A.�Not that I recall, no.16� � � �Q.�And when you've conducted FTE reviews of17� �Ohio Virtual Academy in the past -- I guess it's18� �only been one prior occasion; is that right?19� � � �A.�Yes.20� � � �Q.�I think you told us you would not have21� �looked at any type of student engagement22� �records?23� � � �A.�That's correct.24� � � �Q.�Or computer durational records?
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�1� � � �A.�That's correct.�2� � � �Q.�Do you know whether or not Ohio Virtual�3� �Academy maintains those -- that type of�4� �documentation?�5� � � �A.�I don't know.�6� � � �Q.�If you'd look, then, at the last page of�7� �Exhibit 44.�Can you tell us what that page is,�8� �please?�9� � � �A.�This -- this -- this one you're10� �referring to?11� � � �Q.�Yes, sir.�The one with Bates stamp12� �5076.13� � � �A.�Okay.�These are the directions for a14� �school to use to get into the FTE detail report,15� �and that's where they could pull off all of the16� �students and see start and end dates.�And17� �that's what we would work from then when we're18� �doing the review, is that report with selected19� �students pulled out.20� � � � � �MR. LITTLE:�Okay.�Okay.�Let's take a21� �break here, because we're going to start some22� �new exhibits after this.23� � � � � �THE VIDEOGRAPHER:�Off the record.24
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�1� � � � � � � � � � � � -=O=-�2� � � � � �Thereupon, the luncheon recess was taken�3� �at 12:21 p.m.�4� � � � � � � � � � � � -=O=-�5� � � � � � � � � � AUGUST 29, 2016�6� � � � � � � � � � MONDAY AFTERNOON SESSION�7� � � � � � � � � � 1:25 P.M.�8� � � � � � � � � � � � -=O=-�9� � � � � �THE VIDEOGRAPHER:�Back on the record.10� �BY MR. LITTLE:11� � � �Q.�Sir, let me show you what we previously12� �looked at earlier and was marked as Plaintiff's13� �Exhibit 149, your October 2015 email to Mr. Loew14� �containing the funding agreement.�And we looked15� �at some emails earlier today in which ECOT16� �reflected their disclosure of the funding17� �agreement to you as part of the 2011 FTE review.18� � � � � �And my question is:�Did -- do you19� �recall having any specific communications20� �with -- that is, verbally, with anyone at ECOT21� �regarding the funding agreement at that time?22� � � �A.�No, I don't.23� � � �Q.�Okay.�And do you recall at any point in24� �time having any specific verbal communications
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�1� �with ECOT regarding the funding agreement at any�2� �other dates?�3� � � �A.�No.�4� � � �Q.�And so if I understand your testimony,�5� �at no point in time, as you recall it, did you�6� �communicate to ECOT that you believe the funding�7� �agreement to be inapplicable to the 2011 review?�8� � � �A.�To be inapplicable?�9� � � �Q.�Yes, sir.10� � � �A.�No.11� � � �Q.�That is, you did not communicate that?12� � � �A.�No.�That we weren't -- that we weren't13� �following that, you mean?14� � � �Q.�Yes, sir.15� � � �A.�No.16� � � �Q.�Let me make sure we're using -- you17� �never communicated to ECOT, is it true, that you18� �viewed the 2000 -- excuse me, you viewed the19� �funding agreement as being inapplicable to the20� �2011 FTE review; that's correct?21� � � �A.�I don't recall ever doing that, no.22� � � �Q.�Okay.�All right.�We were chatting23� �before the break regarding some of the initial24� �communications sent out in January 2016
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�1� �regarding the FTE review that would be conducted�2� �that year.�3� � � � � �And if I could please have you take a�4� �look at what I'm going to mark as Plaintiff's�5� �Exhibit 46.�Take a moment and familiarize�6� �yourself with the exhibit and then let me know�7� �when you're finished.�8� � � �A.�Okay.�9� � � �Q.�Okay.�If I could have you look at the10� �February 12th, 2016, email -- excuse me, letter11� �that starts at ECOT 3377 on this document.�You12� �see a correspondence from Mr. Loew to Rick13� �Teeters?14� � � �A.�Yes.15� � � �Q.�And have you seen this letter before?16� � � �A.�I don't know.�I don't recall.17� � � �Q.�If you could look at the first paragraph18� �of Mr. Loew's letter.�See if this refreshes19� �your recollection at all.�It says, "On January20� �27, 2016, area coordinator John Wilhelm emailed21� �ECOT to confirm the initial FTE review meeting22� �for February 22nd, 2016."23� � � � � �And I believe we looked at earlier24� �Exhibit 44.�I'll show that to you again.�So
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�1� �certainly what Mr. Loew said in the first�2� �sentence of his correspondence of February 12,�3� �2016, would be accurate from your -- your�4� �perspective; is that right?�5� � � �A.�The first paragraph is accurate, meaning�6� �that's what happened, or --�7� � � �Q.�No, first sentence.�8� � � �A.�First sentence.�9� � � �Q.�On January 27, 2016, you --10� � � �A.�Oh, based on this letter?11� � � �Q.�Yes, sir.12� � � �A.�Yes.13� � � �Q.�And that email contained an attachment14� �that outlined the documentation and materials15� �necessary for the initial FTE review meeting.16� �That's right, as well?17� � � �A.�Contained the attachment, which would be18� �this?19� � � �Q.�Yes, sir.20� � � �A.�Yes.21� � � �Q.�Mr. Loew also says in his letter, "In22� �addition, the email highlighted documentation23� �requirements in place for the FY16 FTE review24� �that were not in place five years ago when ECOT
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�1� �last received an FTE review."�2� � � � � �That statement, from your perspective,�3� �would be true?�4� � � �A.�Yes.�5� � � �Q.�Now, it says, the nonclassroom-based�6� �learning opportunities have been in the statute.�7� � � � � �Do you know what he's referring to�8� �there?�9� � � � � �MR. COLE:�Objection.�Foundation.10� � � �A.�The nonclassroom-based learning11� �opportunities have been in the statute.�I don't12� �know.13� � � �Q.�Okay.�And then it further provides in14� �this correspondence, "While ODE is now reviewing15� �additional documentation, this is consistent16� �with the statutory requirement for eSchools to17� �maintain documentation for both internet18� �instruction as well as non-classroom based19� �learning opportunities."20� � � � � �Do you know what statutory requirements21� �are being referred to there?22� � � �A.�No.23� � � �Q.�Have you had the occasion or necessity24� �to review any of the statutes that impact FTE
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�1� �funding for eSchools?�2� � � �A.�No.�3� � � �Q.�As part of your responsibilities at ODE,�4� �do you have the occasion to review statutes --�5� �statutes that impact your job?�6� � � �A.�Yes.�7� � � �Q.�Okay.�And what statutes have you�8� �reviewed?�9� � � �A.�For any of my job?10� � � �Q.�Yes, sir.11� � � �A.�Statutes regarding auxiliary services12� �seems to come up quite a bit.13� � � �Q.�Okay.�Have you had to review at any14� �point in time the Ohio statutes relating to15� �funding of eSchools?16� � � �A.�No.17� � � �Q.�If you could look, please, at the next18� �paragraph of Mr. Loew's letter.�It says, "On19� �February 2nd, 2016, area coordinator John20� �Wilhelm was notified by you that ECOT had21� �concerns regarding the ability to successfully22� �run the FY16 detail FTE report and the process23� �to compare and verify FTEs based on documented24� �learning opportunities in the FTE review
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�1� �manual."�2� � � � � �Do you see that?�3� � � �A.�Yes.�4� � � �Q.�Do you have a recollection of having a�5� �conversation on or about February 2nd, 2016,�6� �with Rick Teeters?�7� � � �A.�Either a phone conversation or an email.�8� �I'm not sure which.�9� � � �Q.�Okay.�And can you relate to us, to the10� �best of your recollection, what that11� �communication was?12� � � �A.�I think that he said he's having trouble13� �running the FTE review report.14� � � �Q.�And did he also, as set forth in15� �Mr. Loew's letter, express to you concerns about16� �the ability to verify or provide a document of17� �learning opportunities in the manner that is now18� �being requested by Department of Education?19� � � �A.�Yes, I think he did.20� � � �Q.�And do you have a recollection of21� �anything else that was communicated to you by22� �Mr. Teeters at that time?23� � � �A.�No.24� � � �Q.�And do you recall what, if any, response
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�1� �that you might have offered Mr. Teeters at that�2� �time?�3� � � �A.�No.�4� � � �Q.�Do you recall whether or not ECOT made a�5� �request that it be permitted to speak to anyone�6� �at Department of Education regarding the�7� �imposition of these new standards?�8� � � �A.�Yes.�9� � � �Q.�And what do you recall being10� �communicated?11� � � �A.�I just recall part of the discussion12� �that I would have relayed to -- to Cody Loew,13� �you know, to say that there's concerns.14� � � �Q.�And you had referenced earlier that you15� �had had discussions with Mr. Loew about16� �concerns.�Was this an example of what you were17� �talking about?18� � � � � �MR. COLE:�Objection.�Vague.19� � � �A.�Is my concerns about Rick's concerns?20� � � �Q.�Yes, sir.21� � � �A.�I would have -- I'm sure I would have22� �passed that along to Cody and would have asked23� �them to reply.24� � � �Q.�Okay.�Is there something you're
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�1� �familiar with -- excuse me.�2� � � � � �Are you familiar with the phrase "desk�3� �audit"?�4� � � �A.�Yes.�5� � � �Q.�And what's a desk audit?�6� � � �A.�A desk audit is a final review audit�7� �where you can look at all of the FTE detail�8� �report and the SOES report, and if there are no�9� �errors in that SOES report or no outstanding10� �issues or flags with other schools, where you11� �could do a review over the phone as opposed to12� �going out to the school and physically doing a13� �final review.14� � � �Q.�Okay.�If I could have you look at the15� �second page of Mr. Loew's letter of Jan -- of,16� �excuse me, February 12th.�And if you look at17� �the bold language that reads, "FTE review manual18� �documented learning opportunity requirements."19� � � �A.�Yes.20� � � �Q.�It says, "The recent FTE review manual21� �enhancements help ODE to verify that eSchool22� �FTEs are properly reported and calculated23� �correctly based on the required minimum 92024� �hours of documented learning opportunities.
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�1� � � � � �"As a result, area coordinators will�2� �request computer records for all eSchool�3� �students (in Excel format) that include the�4� �following two elements:�One, student SSID�5� �numbers and, two, total amount of verified time�6� �a student was logged into the online system."�7� � � � � �Sir, the reference there to recent FTE�8� �review manual, do you know that -- whether�9� �that's in reference to the 2016 review manual?10� � � �A.�I do not.11� � � �Q.�Was the -- had the 2016 review manual12� �been withdrawn as of February 2016?13� � � �A.�I don't recall.14� � � �Q.�What was the manner by which it was15� �communicated to you that ODE was not going to16� �utilize the 2016 FTE manual?17� � � �A.�I believe we got either a call or an18� �email from Aaron Rausch to say that we were19� �going to use the '15 manual.20� � � �Q.�Let me have you look at Plaintiff's21� �Exhibit 47 for a moment, please.�You're not22� �copied on this exhibit, but I'm just curious23� �whether the time frame of that refreshes your24� �recollection in any way as to the timing in
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�1� �which the 2016 manual was being withdrawn.�2� �Please review the document to yourself.�3� � � �A.�Okay.�4� � � �Q.�Does that refresh your recollection from�5� �a time standpoint?�6� � � �A.�Well, apparently Apryl had that�7� �information on February 17th.�8� � � �Q.�I'm just trying to find out whether --�9� �what you recall.�We'll have a separate10� �opportunity to speak to Apryl.11� � � � � �Does this give you any greater guidance12� �as you sit here today as to when the 2016 manual13� �was withdrawn?14� � � �A.�No.15� � � �Q.�Now, the 2016 manual which we looked at16� �earlier today -- excuse me.�Let me find it.17� � � � � �MR. COLE:�It was in there.�Maybe it's18� �in here.�Here it is.19� � � � � �MR. LITTLE:�Thank you, Doug.20� � � � � �MR. COLE:�Do you want him to have it?21� � � � � �MR. LITTLE:�Yes, please.22� �BY MR. LITTLE:23� � � �Q.�Which we looked at at Exhibit 35.24� � � �A.�Yes.
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�1� � � �Q.�And we looked specifically at the�2� �language found on pages 15 and 16 regarding the�3� �material that are going to be reviewed as part�4� �of an eSchool review --�5� � � �A.�Yes.�6� � � �Q.�-- remember that?�7� � � �A.�Yes.�8� � � �Q.�Now, after the 2016 manual was�9� �withdrawn, is it fair to say that the10� �documentation set forth on pages 15 and 16 of11� �the 2016 manual were still included as part of12� �the FTE review conducted for years '15-'16 -- or13� �school year '15-'16?14� � � �A.�You're saying was this the same review15� �that was conducted for '16 -- or for -- yes, for16� �'16?17� � � �Q.�Let me ask a better question.18� � � � � �When you're referring to FTE review '16,19� �you're referring to the review for the school20� �year '15-'16; is that correct?21� � � �A.�Yes.22� � � �Q.�Okay.�So even though the FTE manual23� �for -- or the 2016 FTE review manual was24� �withdrawn, the same requirements that are
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�1� �memorialized at page 15 and 16 of that manual�2� �were applied for the 2016 FTE examinations; is�3� �that right?�4� � � �A.�Yes.�5� � � �Q.�And, in fact, with the withdrawal of the�6� �2016 review manual, were there any changes that�7� �were made to you or discussed with you on how�8� �the FTE review -- review should be conducted for�9� �2016?10� � � �A.�No.�Just said to refer to the '1511� �manual is what I would recall.12� � � �Q.�But as I understand it, what your -- if13� �I understand it, you -- your -- whatever you14� �were supposed to do in the 2016 FTE manual you15� �went ahead and did under the 2015 FTE manual?16� � � �A.�They were -- the requirements were the17� �same.18� � � �Q.�Well, I'll highlight those for you19� �later.20� � � �A.�Okay.21� � � �Q.�But the language that is -- what was22� �identified as the new changes in the 2016 FTE23� �manual were, in fact, simply applied by you and24� �the other area coordinators, to your -- your
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�1� �understanding, as part of the 2006 FT -- 2016�2� �FTE reviews?�3� � � �A.�We used the language in '15, which�4� �didn't change any of the requirements for�5� �looking at hours.�6� � � �Q.�Okay.�So your testimony today is what�7� �we see in the 2016 manual in terms of language�8� �about review of hours is the same thing that was�9� �in the 2015 manual; is that your testimony?10� � � �A.�That's -- that's the way I read it.11� � � �Q.�Okay.�And you're basing that -- if we12� �could look, then, at Exhibit 34, which is the13� �FTE manual for 2015.�I'll hand that to you.14� � � � � �Are you basing that on the checklist15� �that is found on page 24 of the manual?16� � � �A.�Let me take a look at it.17� � � �Q.�Sure.18� � � �A.�Yes.19� � � �Q.�Okay.�So if we're looking at the 201520� �FTE manual which we've marked as Exhibit 34, the21� �position you've taken that that manual allows22� �a -- a review of the durational time for the23� �students or a student engagement is found on24� �page 24 in Section 11 of the checklist; is that
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�1� �right?�2� � � �A.�Yes.�3� � � �Q.�And is it true that this checklist�4� �containing that language first appeared in the�5� �2015 FTE manual?�6� � � �A.�There's always been a checklist.�It�7� �wouldn't have been this checklist.�8� � � �Q.�Sure.�The checklist that -- and let me�9� �draw your attention on page 24.�Looking at the10� �checklist that specifically says, "J, if the11� �student has non-computer learning opportunities12� �are such opportunities documented and approved13� �in writing by a teacher, supervisor, or school14� �administrator."�Then there's, "Yes, no, N/A."15� � � � � �And then K, "Was there16� �hourly/daily/weekly/accounting of hours in which17� �the student accessed learning opportunities?18� �Yes/no."19� � � � � �Do you see that?20� � � �A.�Uh-huh.�Yes.21� � � �Q.�Those two items, were they ever present22� �in any checklist prior to the 2015 FTE manual?23� � � �A.�I don't know.�I didn't research that.24� � � �Q.�And if I understand from what you've
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�1� �told me, you wouldn't have conducted a FTE�2� �review in 2015 in which you would have applied�3� �this checklist to an eSchool?�4� � � �A.�I didn't do any eSchools in '15.�5� � � �Q.�Okay.�Was there any other provision of�6� �the 2015 FTE manual that, from your perspective,�7� �supported the view that ODE could review the�8� �duration or student engagement records?�9� � � � � �MR. COLE:�I'm going to note this is a10� �63-page document.�Do you want him to go through11� �it, you mean, or what?12� � � � � �MR. LITTLE:�I'm just asking him based13� �upon his understanding.�He's the one that14� �referenced it earlier.15� �BY MR. LITTLE:16� � � �Q.�And, sir, you're welcome to look at the17� �document, but my question is pretty basic.�You18� �testified earlier that the manual included the19� �right for ODE to review these type of records.20� � � � � �My question was, is the basis for that21� �contention found in this checklist or was there22� �something else in the manual you were thinking23� �of or referencing in your prior testimony?24� � � �A.�I would have referenced what's on the
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�1� �checklist.�2� � � �Q.�Okay.�Now -- and do you have a�3� �recollection whether prior to the filing of this�4� �lawsuit you were aware of items J and K of --�5� �strike that.�6� � � � � �Prior to January 2016, were you aware of�7� �items J and K as set forth on this checklist�8� �included in the 2015 FTE manual?�9� � � �A.�Was I aware of them?�I don't recall.10� � � �Q.�Was there any occasion you can think of11� �prior to January 2016 in which you would have12� �had the necessity or the occasion, as you13� �recall, to look at items J and K on page 24 of14� �the 2015 FTE manual inasmuch as you were not15� �conducting an FTE review of an eSchool in that16� �year?17� � � �A.�No, I don't -- I don't think I would18� �have had a need for those.19� � � �Q.�So was it in 2016, after the 201620� �manual -- FTE manual was withdrawn that you were21� �first made aware of or become aware of items J22� �and K of the 2015 FTE manual at page 24?23� � � � � �MR. COLE:�Objection.�Asked and24� �answered.
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�1� � � �A.�I don't understand your question.�2� � � �Q.�Sure.�After the withdrawal of the 2006�3� �FT -- 2016 FTE manual, was that the first time�4� �you became aware of subparagraph J and K as�5� �reflected on page 24 of the 2015 FTE manual?�6� � � �A.�I can't say that I would agree with�7� �that.�I would say it's the first time I went�8� �back to review those and make sure that we were�9� �doing what was supposed to be done in '15, using10� �the '15 manual.11� � � �Q.�After the withdrawal of the 2016 FTE12� �manual, did Mr. Loew advise you that it was his13� �perspective that you could look at durational14� �and login records on -- with the use of the 201515� �manual?16� � � �A.�That was my understanding.17� � � �Q.�And was it Mr. Loew that at that time18� �would have pointed your attention to J and K on19� �page 24 of the 2015 FTE manual?20� � � �A.�I don't recall whether that was coming21� �directly from him.22� � � �Q.�Was there anyone else at ODE that23� �communicated to you that it was their24� �perspective in the first quarter 2016 that items
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�1� �J and K of the checklist found on page 24 of the�2� �2015 FTE manual supported ODE's right to review�3� �and inspect durational or login records?�4� � � �A.�That would have been my assumption.�5� � � �Q.�Well, my -- I'm sorry, my question, was�6� �there anyone else that communicated that?�7� � � �A.�Oh, in the department?�8� � � �Q.�Yes, sir.�9� � � �A.�No, I don't -- I don't recall.10� � � �Q.�And so as you sit here today, the only11� �person you can think though -- think of that12� �would have advised you in the first quarter of13� �2016 that page 24, items J and K of the 2015 FTE14� �manual permitted ODE to review durational and/or15� �login records would have been Mr. Loew?16� � � �A.�That would be my guess, yes.�I don't17� �recall specific conversation, but he would have18� �been the one that would have been advising us on19� �the FTE review, so...20� � � �Q.�Did Mr. Loew express to you his21� �expectation -- strike that.22� � � � � �After withdrawal of the 2016 manual,23� �Mr. Loew expressed to you either in -- by an24� �email or verbally that it was his expectation
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�1� �that you would apply the 2015 FTE manual in�2� �conducting the 2016 FTE reviews?�3� � � �A.�Yes.�4� � � �Q.�And that you would apply that 2015 FTE�5� �manual to each of the community schools that you�6� �were auditing during that time period?�7� � � �A.�Yes.�8� � � �Q.�And was this the only documentation that�9� �Mr. Loew or anyone else at the Department of10� �Education provided to you -- provided to you to11� �set forth the manner by which these FTE reviews12� �would be conducted in 20 --13� � � �A.�'15 -- oh, I'm sorry.14� � � �Q.�Sure.�Let me ask it again because --15� �was the 2015 FTE manual the only documentation,16� �then, that was provided to you by anyone at the17� �Department of Education that would set forth the18� �manner by which you were to conduct the 2016 FTE19� �reviews?20� � � �A.�The other one we looked at earlier would21� �also, the PowerPoint.22� � � �Q.�The PowerPoint presentation?23� � � �A.�Yes.24� � � �Q.�That related originally to the 2016 FTE
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�1� �manual?�2� � � �A.�Right.�3� � � �Q.�Okay.�So between the PowerPoint and�4� �then the 2015 FTE manual, those were the -- the�5� �two types of documents that were provided to you�6� �by the Department of Education that would set�7� �forth the approach and methodology for you to�8� �conduct the 2016 FTE reviews?�9� � � �A.�Yes.10� � � �Q.�Now, were there any other communications11� �you had with anyone at ECOT regarding the review12� �that conduct -- was conducted in March other13� �than the initial email correspondence to ECOT14� �setting forth that these new requirements are15� �going to be reviewed and then your conversation16� �with Mr. Teeters that you've already shared with17� �us?18� � � �A.�Yes.19� � � �Q.�What other communications do you recall20� �having with anyone at ECOT?21� � � �A.�I think I talked with Rick a couple of22� �times on the phone, Rick Teeters, and we also --23� �Abby Dewar and I also made a trip there to meet24� �Rick, because I had not met Rick yet.�And just
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�1� �to go over the process to make sure that we�2� �didn't waste time once we got there and were�3� �ready to work when we got there with the�4� �documents.�5� � � �Q.�Was this Abby Dewar's first --�6� � � �A.�Alice Dewar is her official name.�7� � � �Q.�Alice.�8� � � �A.�Yes.�9� � � �Q.�Okay.�Thank you.�Was this Alice10� �Dewar's first FTE review?11� � � �A.�Yes.12� � � �Q.�Do you know whether she had any13� �experience conducting FTE reviews prior to the14� �ECOT FTE review?15� � � �A.�No.16� � � �Q.�That she didn't have experience, or you17� �don't know?18� � � �A.�She didn't have FTE experience, no.19� � � �Q.�Do you know what her experience was?20� � � �A.�She was a classroom teacher for many21� �years, and then a building principal for many22� �years after that, and then a local school23� �superintendent, and then worked for the24� �department prior to coming to the area
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�1� �coordinator office on some school improvement�2� �initiatives.�3� � � �Q.�Okay.�And what do you recall from your�4� �conversations with Rick Teeters, prior to the�5� �March review, other than what you've described�6� �for us so far?�7� � � �A.�I'm sure we talked about the concern�8� �about the -- using the counts, you know, about�9� �having to count hours.10� � � �Q.�Did Mr. Teeters express to you continued11� �concerns about the ability of ECOT to provide12� �that type of documentation to you?13� � � �A.�Yes.14� � � �Q.�And did Mr. Teeters share with you15� �concerns he had about the financial impact of16� �the FTE review to ECOT given its inability to17� �provide those type of records to you?18� � � �A.�I'm sure in one way or another he did.19� �I don't recall specifically.20� � � �Q.�Did Mr. Teeters also share with you21� �concerns he had about the -- the fairness of the22� �process and the sufficiency of the notice by ODE23� �to ECOT that these type of records would be24� �considered?
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�1� � � �A.�I'm sure he did.�2� � � �Q.�And are all the concerns that�3� �Mr. Teeters noted something that you would have�4� �shared with Cody Loew at one point or the other�5� �prior to the review?�6� � � �A.�I would think so.�7� � � �Q.�And was Mr. Loew's response each time�8� �simply that this was the manner by which the�9� �reviews were going to be conducted?10� � � �A.�Well, I'm thinking more in the sense11� �that I would have referred Rick to Cody with the12� �concerns rather than me trying to relay those13� �concerns or trying to act as intermediate.14� � � �Q.�That is, whatever the new standards15� �were, you weren't the one promulgating them,16� �that was ODE?17� � � � � �MR. COLE:�Objection to new standards.18� �BY MR. LITTLE:19� � � �Q.�You can answer.20� � � �A.�I -- I felt like I was in the middle of21� �the situation and I wanted him to talk directly22� �to -- to my superiors.23� � � �Q.�And do you know whether or not24� �Mr. Loew -- excuse me.�Did Mr. Loew share with
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�1� �you any follow-up communications he had with�2� �Mr. Teeters on those subjects?�3� � � �A.�No.�I was, again, aware that there was�4� �some discussion going on or supposed to be some�5� �discussion going on between ODE and some of the�6� �community school leaders about the requirements.�7� �I was not privy to those discussions.�8� � � �Q.�Now, you indicated there was a pre-FTE�9� �review meeting held at ECOT?�Excuse me.10� � � �A.�Yes.11� � � �Q.�And you and Ms. Dewar were present?12� � � �A.�Yes.13� � � �Q.�Mr. Teeter [sic] was present?14� � � �A.�Yes.15� � � �Q.�And who else was present at that16� �meeting?17� � � �A.�I don't have notes on that meeting.18� �Abby kept some notes for me.�Rick probably19� �would remember who was there.20� � � �Q.�Do you recall there being an open issue21� �at that point in time, at the pre-FTE meeting,22� �as to what specific records ODE would be --23� �would be reviewing?24� � � �A.�What do you mean by an "open issue"?
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�1� � � �Q.�Do you recall there being some�2� �continued -- strike that.�3� � � � � �Do you recall there being any ambiguity�4� �in your mind as to what records would be�5� �reviewed by ODE as part of the FTE review at�6� �that time?�7� � � �A.�Yes.�8� � � �Q.�And what was the ambiguity in your mind?�9� � � �A.�About what documentation was going to10� �suffice for showing engaged hours.11� � � �Q.�And -- and please explain.12� � � �A.�Well, what -- what were they going to be13� �able to show us to show that the student was14� �engaged for 920 hours.15� � � �Q.�Oh, you were -- the ambiguity in your16� �mind is whether ECOT would have the ability to17� �demonstrate those hours?18� � � �A.�Right.19� � � �Q.�Do you recall making a statement to20� �Mr. Teeters during this meeting that you were21� �not going to conduct an hour review of student22� �logins?23� � � �A.�Say that again.24� � � �Q.�Do you recall making a statement to
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�1� �Mr. Teeters during the course of this meeting�2� �that ODE would not be conducting an hour review�3� �of student logins?�4� � � �A.�No.�5� � � �Q.�Did you suggest to him in any way that�6� �ODE was backing off its stated intention to�7� �review login records?�8� � � �A.�No.�9� � � �Q.�Did you suggest to him in any way that10� �there would be any -- there would be no11� �consequences for the lack of having login12� �records?13� � � �A.�No.�The only suggestion that I made was14� �that we were not sure what was -- what was going15� �to be done with the information.16� � � �Q.�Did you indicate to -- strike that.17� � � � � �Following up on your answer, so what18� �you're saying is you communicated that you did19� �not know what would be done with the FTE review20� �results?21� � � �A.�Yes, that's fair.22� � � �Q.�And when you say you did not know what23� �would be done with the FTE review results, is24� �that because you were unclear, based upon what
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�1� �had been communicated to you by your supervisor,�2� �as to the manner in which consequences would be�3� �imposed on that data?�4� � � �A.�I'm not going to ask you to repeat that�5� �question, I'm just going to tell you maybe in a�6� �way that answers what I think you're asking me.�7� � � �Q.�Okay.�8� � � �A.�Okay.�I think that it was unclear to�9� �us -- what we were told is to report what you10� �see as opposed to saying, well, you're going to11� �be able to make concrete decisions when you're12� �there about the number of hours for each student13� �and make some kind of adjustment in the FTE.14� � � �Q.�That is, you, at -- at the area15� �coordinator level, was not being asked to make16� �the adjustments?17� � � �A.�Or the final decision on how that was18� �going to be dealt with.19� � � �Q.�That is, you expected that someone more20� �senior to your position would be making the21� �determination as to the financial consequences22� �in the event the documentation that was being23� �sought was unavailable?24� � � �A.�Yes.
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�1� � � �Q.�And did you have any reason to believe�2� �that anyone at ODE was not intending to apply�3� �the 2015 FTE manual to the 2006 [sic] FTEs --�4� �reviews?�5� � � �A.�I was not sure what they were going to�6� �do with that.�7� � � �Q.�Did you inquire?�8� � � �A.�No.�9� � � �Q.�Did anyone tell you?10� � � �A.�No.11� � � �Q.�No one at any point in time suggested12� �that ODE was not going to apply the 2015 FTE13� �manual as written; is that correct?14� � � �A.�That's correct.15� � � �Q.�And, in fact, based upon your16� �experience, your expectation would be that ODE17� �would apply the 2015 FTE manual as written?18� � � �A.�I don't know that I can say yes to that.19� � � �Q.�Is that because you don't have20� �experience on that particular subject matter?21� � � �A.�With when they apply and when they don't22� �apply?23� � � �Q.�Yes, sir.24� � � �A.�Yes.
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�1� � � �Q.�In your experience, have you ever had an�2� �occasion in which the FTE manual that was in�3� �place at the time that was being applied to a�4� �particular FTE review was not fully enforced?�5� � � �A.�I would think there were times when it�6� �was not fully enforced.�7� � � �Q.�Can you think of an example for us?�8� � � �A.�No, I think it's based on -- my answer�9� �is based on interpretation of what a reviewer10� �would see when they were out there and whether11� �or not they would determine that they needed to12� �pull more records or go any further.13� � � �Q.�Okay.�Well, at some point a conclusion14� �was reached, but once the conclusion was15� �reached, it's been your experience the FTE16� �manual would be applied with uniformity to17� �whatever the conclusion was?18� � � �A.�In my experience, I can't tell you that19� �I've had a time when there was a major reduction20� �in -- in FTEs, so I -- from my experience, my21� �answer is no.22� � � �Q.�And -- and the answer you say no is23� �simply because, in your experience, the FTE24� �reviews you've conducted have been consistent
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�1� �with the FTE manuals; that is, the subject of�2� �the review had provided the documentation�3� �sufficient to satisfy whatever the inquiries�4� �were under the FTE manual?�5� � � �A.�To the best of my ability.�6� � � �Q.�Okay.�All right.�Now, prior to the�7� �March FTE review for ECOT, you would have�8� �provided a list of students for which you would�9� �expect ECOT to pull records?10� � � �A.�Yes.11� � � �Q.�And those student names are randomly12� �drawn?13� � � �A.�Yes.14� � � �Q.�And were there 750 students?15� � � �A.�750, yes.16� � � �Q.�And then when you arrived at ECOT for17� �the March FTE review, did you request files for18� �other additional students?19� � � �A.�Yeah, the -- the manual talks about20� �with -- with a large draw like that that you21� �provide two days ahead the names of the students22� �so that the school has time to pull those23� �records.24� � � � � �And I believe the first review that we
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�1� �did with ECOT this time around, Rick ran the�2� �report, or someone in Rick's office ran the FTE�3� �detail report with all of the students, and then�4� �gave that to me, and I gave it to ODE to random�5� �sample 750 with ECOT receiving 600 two dates�6� �ahead, and then the last 150 I would have given�7� �them the day -- the first day we arrived.�8� � � �Q.�Have you given such list more than two�9� �days in advance in the past?10� � � �A.�Yes.11� � � �Q.�Okay.�Is there a -- do you have a -- is12� �it the approach you follow to try to give the13� �school as much notice as possible so that14� �massive quantities of files can be collected?15� � � �A.�Yes.16� � � �Q.�Okay.�And historically your practice17� �has been to give more than two days' notice for18� �the collection of --19� � � �A.�I would say the last time I did ECOT,20� �I'm sure that I gave them more than two days.21� � � �Q.�Okay.�Was there any --22� � � �A.�I'm pretty sure.23� � � �Q.�Was there any particular reason here to24� �give fewer days' notice than in the past?
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�1� � � �A.�Just based on all of the scrutiny that�2� �was now being placed on this, that if you didn't�3� �follow things exactly, then, you know, someone�4� �was going to say you weren't following the�5� �rules, so that was my rationale.�6� � � �Q.�So following things exactly -- when you�7� �say "things," you're talking about the materials�8� �by -- by the procedures and standards set forth�9� �in the 2015 FTE manual?10� � � �A.�Right.11� � � �Q.�Okay.�And so going through this12� �process, it was your intention to follow the13� �procedures and standards set forth in the 201514� �manual exactly?15� � � �A.�As best I could, yes.16� � � �Q.�Now, the March FTE review of ECOT, that17� �would have included yourself and at least three18� �other individuals?19� � � �A.�Yes.20� � � �Q.�Ms. Dewar would have been one of those?21� � � �A.�Yes.22� � � �Q.�And who were the other two?23� � � �A.�Jim Lambert from area 2.�He's a24� �full-time coordinator.�And Chris Babal, who
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�1� �works at the department.�2� � � �Q.�Was this the first occasion in which you�3� �had a FTE review that included Chris Babal?�4� � � �A.�Yes.�5� � � �Q.�And do you know whether or not Mr. Babal�6� �had participated in other FTE reviews at any�7� �point in time?�8� � � �A.�I don't know.�9� � � �Q.�Did he suggest or indicate to you that10� �he had?11� � � �A.�No.12� � � �Q.�And after that FTE review was conducted13� �in March, was there an exit conference?14� � � �A.�Yes.15� � � �Q.�Now, during the course of the review16� �itself, did you share with anyone at ECOT any17� �concerns you had with respect to the18� �documentation being produced?19� � � �A.�No, the documentation for everything20� �other than matching the hours was impeccable.21� �We found -- I take that back.�We found some22� �errors the first time around, small errors, that23� �were relating to students who may have been24� �entered into the system and then fell out of the
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�1� �system before they logged in any time.�And I�2� �think those -- we referenced those in the first�3� �document.�They were small FTE amounts.�4� � � �Q.�Okay.�5� � � �A.�They were minor.�6� � � �Q.�So based upon the standards that have�7� �been applied in 2011, the documentation that was�8� �made available by ECOT for your review as part�9� �of the March FTE review process would have10� �easily satisfied those standards?11� � � �A.�Yes.12� � � �Q.�And did you make a specific request13� �during the course of the 2000 -- excuse me.�Did14� �you make a request during the course of the15� �March 2016 FTE review for copies of durational16� �records?17� � � �A.�Well, the durational records that we saw18� �in the first review had login/logout times, and19� �that's what we assumed they had available.20� � � �Q.�Well, I guess my question is a little21� �bit different.�Did you -- did you or any of the22� �other participants, on behalf of ODE, during the23� �course of the March 2016 FTE review, make a24� �specific request for any durational records?
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�1� � � �A.�Several of my colleagues at some point�2� �during the first review asked whether it would�3� �be possible -- you know, what would -- what�4� �would be needed to get those, and I believe the�5� �general opinion that we were given was that�6� �those -- those were on multiple -- in multiple�7� �modules and that they would be very difficult to�8� �put together for the review.�9� � � �Q.�When you started the review, there were10� �already made available for you 600 student11� �files?12� � � �A.�Yes.13� � � �Q.�And when you started your review, did14� �those student files have any login/logoff15� �records?16� � � �A.�All of them did.17� � � �Q.�Okay.�And is that because there had18� �been any type of specific request made by ODE19� �for those materials?20� � � �A.�Well, that's what we would have had in21� �our original letter to them, the letter that I22� �wrote to them saying what I was going to look23� �for.24� � � �Q.�So if I understand your testimony is
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�1� �there was certain login/logoff documentation�2� �maintained in the student files and then�3� �multiple members of the review team made�4� �inquiries of ECOT as to the availability of�5� �other types of durational records?�6� � � �A.�Whether that -- those would be�7� �available, what would that take.�8� � � �Q.�Okay.�Was there an expectation those�9� �records would be available that day?10� � � �A.�No.11� � � �Q.�Or during the course of the March12� �review?13� � � �A.�No.�Was there an expectation from me?14� � � �Q.�Yes, sir.15� � � �A.�No.16� � � �Q.�Was -- was there an expectation17� �expressed by any of the other FTE reviewers that18� �such documentation was present for the March19� �review?20� � � �A.�No, I don't think so.21� � � �Q.�Okay.�So what you were making at that22� �point in time were inquiries of ECOT as to what23� �is the process that's necessary to collect that24� �type of data, if it's available?
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�1� � � �A.�Yes.�What would that take?�I mean, is�2� �it available, what would it take?�3� � � �Q.�Okay.�And you had told us earlier that�4� �Mr. Teeters had told you that he had concerns�5� �about the availability of that type of�6� �information?�7� � � �A.�Yes.�8� � � �Q.�And during the course of the March --�9� � � �A.�Or gathering that information.10� � � �Q.�Okay.�And during the course of the11� �March FTE review, was it once again shared with12� �you by individuals at ECOT that it would be13� �difficult to gather that type of information?14� � � �A.�Yes.15� � � �Q.�Okay.�And did they also express to you16� �during the course of the March 2015 -- excuse17� �me, 2016 FTE review that there are certainly18� �different learning opportunities that students19� �participate in for which there is no measurement20� �of time?21� � � �A.�Yes.22� � � �Q.�Okay.�And were there any23� �recommendations then made during the course of24� �the March 2016 FTE review by the review team as
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�1� �to how those type of document -- how that type�2� �of documentation should be maintained on a�3� �going-forward basis?�4� � � �A.�No.�5� � � �Q.�Has the -- to your knowledge, had the�6� �Department of Education developed any type of�7� �guidelines that it has shared with eSchools or�8� �other blended schools with respect to the�9� �techniques or tools to be utilized for tracking10� �student engagement in terms of durational11� �records?12� � � �A.�I'm not aware of any.13� � � �Q.�And to your knowledge, has the14� �Department of Education developed any type of15� �guidelines or rules to assist eSchools for16� �documenting learning opportunities that do not17� �occur on a computer system?18� � � �A.�No, I'm not aware of any.19� � � �Q.�During the course of the March 2016 FTE20� �review, you would have seen teacher21� �certifications?22� � � �A.�Yes.23� � � �Q.�And were those teacher certifications24� �reviewed as part of the review process?
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�1� � � �A.�They were noted.�2� � � �Q.�When you say noted, what do you mean?�3� � � �A.�Well, let me think about that.�The�4� �teacher certifications didn't show up until the�5� �second review.�6� � � �Q.�Okay.�7� � � �A.�I don't think they were in the first�8� �review.�I'm sorry.�9� � � �Q.�I don't think they were either.�That's10� �why I'm asking the question.11� � � � � �All right.�So teacher certifications12� �would have been made available to you in July of13� �2016?14� � � �A.�The second -- during the second review.15� � � �Q.�Okay.16� � � �A.�That's the first I'd seen those.17� � � �Q.�Okay.�So as part of the exit conference18� �at the conclusion of the March 2016 FTE review,19� �did your review team share with ECOT any20� �preliminary conclusions?21� � � �A.�Just general comments.�We complimented22� �them on the -- on the records and the helps they23� �had put into the records so we could easily find24� �the information that we were needing to look at,
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�1� �IEP records, certifications -- not�2� �certifications, the -- the certification that a�3� �computer had been delivered and/or that the�4� �parent declined that -- you know, the computer.�5� �Basic things that we had looked at in FY11, but�6� �they were -- the records were in good shape�7� �there.�8� � � � � �We noted the 14 errors and talked about�9� �those with them, and they understood what those10� �were and that they were going to go through --11� �the EMIS person was going to go through and look12� �for any other glitches that they might have had13� �that counted students for a small FTE amount14� �that they were going to take back out.�We15� �didn't consider those a big deal, and I don't16� �think they did either.�They just were going to17� �correct them.18� � � � � �I did not dwell on the -- on the lack of19� �hours.�As a matter of fact, I think I made a20� �statement about hoping we didn't have to review21� �750 files the second time.22� � � �Q.�Did you suggest there might be a desk23� �audit for the second review?24� � � �A.�If I did, I was mistaken, because they
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�1� �would never have qualified for a desk audit.�2� � � �Q.�So following up on your comment about�3� �not reviewing another 750 files, what do you�4� �mean by that?�5� � � �A.�Well, if they had all of the records --�6� �the -- the majority of the records in place for�7� �birth certificates and for special education and�8� �those cursory things that we looked at for the�9� �first time, I was hoping that we wouldn't come10� �back and do 750 more files to find the same11� �thing.�They -- they had good records.�And in12� �the second FTE review that we did confirmed13� �that.�Their records were good in those areas.14� �The big elephant in the room is, obviously, how15� �we're going to count the hours.16� � � �Q.�Okay.�So at the conclusion of the March17� �2016 FTE review, as part of this exit18� �conference, did you express to ECOT that, from19� �your standpoint, there were any material20� �concerns with the sufficiency of the21� �documentation that had been provided?22� � � �A.�No.23� � � �Q.�And was there any concerns expressed24� �to -- excuse me.�Did anyone -- were you -- were
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�1� �you the principal speaker on behalf of the FTE�2� �review group?�3� � � �A.�Yes.�4� � � �Q.�Okay.�And was there any communication�5� �by the FTE review group about concerns that�6� �group had with the login/logoff records that had�7� �been provided by ECOT as part of the March�8� �review?�9� � � �A.�I don't specifically remember talking10� �about that, no.11� � � �Q.�And do you recall there being any12� �communications by the FTE review group to ECOT13� �during this exit interview suggesting that other14� �types of documentation needed to be provided in15� �the future with respect to the measurement of16� �duration or student engagement?17� � � �A.�Well, that was in my file, in my letter18� �to them.19� � � �Q.�Was that communicated as part of the20� �exit interview?21� � � �A.�No.22� � � �Q.�Was it your expectation when the March23� �exit view -- exit interview was being conducted24� �that the real focus on maintaining student
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�1� �engagement records or durational records should�2� �be for school year 2016 and '17?�3� � � �A.�Was it my expectation?�4� � � �Q.�Yes, sir.�5� � � �A.�I didn't have an expectation.�6� � � �Q.�Did you communicate that it was your�7� �expectation, based upon the March review, that�8� �ECOT would not have to pull, for purposes of the�9� �second component of the review, all the student10� �files once again?11� � � �A.�I -- that was my hope that I expressed12� �to them.�And I'm -- I'm certain that I also13� �said, but I will let you know after I complete14� �this review and find out what I'm told to do the15� �second time.16� � � �Q.�And as you -- excuse me.17� � � � � �For purposes of this exit interview,18� �then it sounds like the only concerns that were19� �shared with ECOT related to the handful of20� �student files that had a couple issues that had21� �to be remedied and could be remedied fairly22� �easily?23� � � �A.�Yes.24� � � �Q.�Otherwise, there was no substantive
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�1� �concerns expressed by you or the other members�2� �of the review team to ECOT as part of that exit�3� �interview?�4� � � �A.�That's correct.�5� � � �Q.�Now, after the completion of the exit�6� �interview, what's the next step that you would�7� �have undertaken in terms of processing the data�8� �that had been collected from ECOT?�9� � � �A.�I would have gathered any information10� �from the other reviewers, started writing a11� �report, gone through the checklist, and then12� �sent those to ODE.13� � � �Q.�And to whom at ODE would you have sent14� �that material?15� � � �A.�I think these were all coming back to16� �Cody.17� � � � � �MR. COLE:�Marion, it's been about an18� �hour.�Can we take five minutes?19� � � � � �MR. LITTLE:�Yeah, just one second.20� � � � � �MR. COLE:�Sure.21� �BY MR. LITTLE:22� � � �Q.�Were you asked to send your initial23� �write-up to anyone else other than Mr. Loew?24� � � �A.�No.
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�1� � � �Q.�And would you have provided oral reports�2� �to anyone in addition to whatever you're�3� �preparing in writing?�4� � � �A.�Oral reports?�5� � � �Q.�Yes, sir.�6� � � �A.�No.�7� � � �Q.�Or -- I don't want to get stuck in�8� �semantics.�Was there other ways you were�9� �communicating what you -- what your report was10� �other than what you prepared and shared with11� �Mr. Loew?12� � � �A.�Ask me that again.13� � � �Q.�Sure.�Was there any -- excuse me.14� � � � � �You told us that there was a report that15� �you prepared and shared with Mr. Loew; is that16� �right?17� � � �A.�Uh-huh.�Yes, that's correct.18� � � �Q.�Other than communicating information19� �through that tool, was there any other way in20� �which you were communicating to other folks at21� �ODE the results of the ECOT March FTE review?22� � � �A.�No, I don't believe.23� � � � � �MR. LITTLE:�Okay.�We'll take a quick24� �break.
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�1� � � � � �MR. COLE:�Thank you.�2� � � � � �THE VIDEOGRAPHER:�Off the record.�3� � � � � �(Recess.)�4� � � � � �THE VIDEOGRAPHER:�Back on the record.�5� �BY MR. LITTLE:�6� � � �Q.�Sir, during the -- the exit review, did�7� �you suggest or intimate to ECOT that the area�8� �managers would not be calculating duration of�9� �time for student engagements that year?10� � � �A.�I don't recall, no.11� � � �Q.�Let me show you what I've marked as12� �Plaintiff's Exhibit 50.�Do you know an13� �individual by the name of Fred Ross?14� � � �A.�Yes.15� � � �Q.�And how do you know Mr. Ross?16� � � �A.�He was an area coordinator in the17� �Cincinnati area.18� � � �Q.�Is he still one today?19� � � �A.�No.20� � � �Q.�And was there -- when did he leave that21� �position?22� � � �A.�Oh, I want to say he's been gone for23� �almost a year.24� � � �Q.�It appears that I have an email from him
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�1� �of February 18, 2016.�If you look at the email�2� �at the middle of the page.�3� � � �A.�Yeah, yeah, he had to have left shortly�4� �after that because he hasn't -- he hasn't been�5� �around for a while.�6� � � �Q.�Do you know whether he was terminated?�7� � � �A.�No, I don't think he was -- I'm sure he�8� �wasn't terminated.�9� � � �Q.�Do you recall having discussions with10� �him about concerns he expressed about the manner11� �by which ODE was providing notice to the schools12� �of the FTE requirements?13� � � �A.�No.14� � � �Q.�Now, after you -- excuse me.15� � � � � �When did you provide your report to Cody16� �Loew based upon the March review of ECOT?17� � � �A.�I -- I don't recall, unless somebody18� �else has that.19� � � �Q.�Give me a sense, is that a -- a --20� �something you can do fairly quickly or does it21� �take some time?�I'm just trying to get a sense.22� � � �A.�Oh, my write-up to them?23� � � �Q.�Yes.24� � � �A.�Yes, I try to do that as soon as
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�1� �possible.�I'm guessing within ten days I had�2� �that back to ODE.�3� � � �Q.�Okay.�4� � � �A.�And it may -- that one may have taken�5� �most of ten days because I was in and out of the�6� �office right after that review.�7� � � �Q.�During the course of the March review,�8� �were you keeping Mr. Loew or other individuals�9� �at ODE updated as to what materials you were10� �reviewing or assessing at ECOT?11� � � �A.�I did not, no.12� � � �Q.�Are you aware of -- aware of anyone on13� �the -- the reviewing team that was doing so?14� � � �A.�Let me think.�I don't think so.15� � � �Q.�Bear with me for a second.16� � � � � �Before you submitted your report to17� �Mr. Loew, did you have an opportunity to speak18� �to him about it?19� � � �A.�Yes, I think I did.20� � � �Q.�And what do you recall orally reporting21� �to Mr. Loew?22� � � �A.�Basically what showed up in the report.23� � � �Q.�Did he ask you any specific questions?24� � � �A.�I can't recall that.
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�1� � � �Q.�Do you recall whether you shared any�2� �information with Mr. Loew other than what's set�3� �forth in your report?�4� � � �A.�No.�5� � � �Q.�Let me show you what I've marked as�6� �Plaintiff's Exhibit 56.�Sir, have you seen�7� �Exhibit 56 before?�8� � � �A.�Yes.�9� � � �Q.�And this reflects a April 15, 2016,10� �email from you to Diana Lease?11� � � �A.�Yes.12� � � �Q.�And it says, "Please find attached a13� �draft document I will send ECOT.�Please advise14� �when okay to send."15� � � �A.�Yes.16� � � �Q.�Who directed you to send this to17� �Ms. Lease?18� � � �A.�Cody Loew.19� � � �Q.�Is this the first time you communicated20� �any information directly to Ms. Lease?21� � � �A.�That I can recall, yes.22� � � �Q.�Okay.�Did Mr. Loew advise you as to why23� �he asked you to send this to Ms. Lease?24� � � �A.�No.
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�1� � � �Q.�Have you sent any other FTE�2� �review-related documents directly to Ms. Lease?�3� � � �A.�Not that I can recall.�4� � � �Q.�Would your report to Mr. Loew have been�5� �in a form different than what's attached to�6� �Exhibit 56, or is this the same thing you're�7� �referring to?�8� � � �A.�This -- I think this is the report.�9� � � �Q.�Okay.�So Exhibit 56, starting with the10� �second page, would be an FTE report form that11� �you would have drafted?12� � � �A.�Yes.13� � � �Q.�And are you the author of the contents14� �of this report?15� � � �A.�Yes.16� � � �Q.�Is this the standard form of report you17� �typically would have prepared after the18� �completion of an FTE review report?19� � � �A.�Yes.20� � � �Q.�Or, excuse me, after completion of an21� �FTE review?22� � � �A.�Yes.23� � � �Q.�That is, it's the same form you would24� �have used since 2008?
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� � � �A.�This is the one I was telling you�2� �earlier that I usually put my report form�3� �information in the report as opposed to in the�4� �letter.�5� � � �Q.�Yes.�6� � � �A.�And at some point -- I don't know if it�7� �was in this one or one of the other ones -- that�8� �Cody reminded me to put the contents in the�9� �letter form and then send the letter, not10� �necessarily the report form.11� � � �Q.�Did -- is the point of the report to12� �create an accurate recitation of the FTE review?13� � � �A.�Yes.14� � � �Q.�And if we could look at the first page15� �of your report, this one's marked draft.�Do you16� �know whether there were any subsequent revisions17� �made to the draft report?18� � � �A.�I don't believe there were.19� � � �Q.�Looking at the second page where it20� �says, "Issues and recommendations," where it21� �says, "A total of 750 student files were22� �reviewed, with an initial 600 SSIDs given to the23� �school three workdays before the review.�The24� �final 150 SIDs were given to the ECOT team on
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�1� �day one of the review.�Three ODE reviewers were�2� �present for two and a half days, an additional�3� �reviewer was present for two days."�4� � � �A.�Yes.�5� � � �Q.�Final FTE review recommending occurring�6� �after June 13, 2016.�So would that have been in�7� �a time frame consistent with your -- with your�8� �historical approach?�9� � � �A.�I'm not sure I understand your question.10� � � �Q.�That is, the time that's identified in11� �your draft report for conducting the FTE review,12� �is that in a time frame that typically would13� �follow after the preliminary review?14� � � �A.�Well, this -- we were running later on15� �these because we got started later.�Is that16� �what you mean?17� � � �Q.�When do you typically start?18� � � �A.�In most years, you would start -- could19� �start as early as December, but I think the20� �manual talks about starting in January.21� � � �Q.�Okay.22� � � �A.�And this was, obviously, later than23� �that.24� � � �Q.�Is there a certain number of months that
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�1� �typically have passed between the -- conducting�2� �the first portion of the FTE review and then the�3� �second portion?�4� � � �A.�I think ideally the biggest space you --�5� �you could have is good especially if a district�6� �needs time to correct anything.�7� � � �Q.�The balance, then, of that paragraph�8� �we're looking at, "Using the FY15 FTE review and�9� �community school handbook, our initial reviewer10� �was not able to substantiate the following," and11� �then there's -- looks to be 1, "an attendance12� �record for the student that matches the amount13� �of time reported in EMIS (a learning opportunity14� �for an eSchool student could be computer15� �learning, reading resources documents, writing16� �papers, taking tests, doing research, field17� �trips, and conferencing with teachers,18� �et cetera.�There must be a login but that19� �cannot be the only proof of attendance."20� � � � � �That language that's in the21� �parenthetical there, where does that come from?22� � � �A.�I would think it came from the23� �checklist.24� � � �Q.�Okay.�And was this -- when you say
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�1� �issues and recommendations, you've identified as�2� �an issue that, from your review, the�3� �documentation that was provided by ECOT as part�4� �of the March review did not comply with the 2015�5� �FTE review manual; is that right?�6� � � �A.�Yes.�7� � � �Q.�And is this something that in the�8� �ordinary course, this particular report form�9� �would have been shared with the -- the eSchool?10� � � �A.�In my early days, I would have sent a11� �bland cover letter and then attached this12� �document.13� � � �Q.�Okay.14� � � �A.�Now we're supposed to put everything15� �that's in here that we want to report in the16� �letter itself.17� � � �Q.�So when you first prepared this memo,18� �your expectation was it would have simply been19� �forwarded to ECOT in this format, but then you20� �were told --21� � � �A.�That's the way I would have -- I would22� �have normally done it, yes.23� � � �Q.�Okay.�So why wasn't it the -- excuse24� �me.
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� � � � � �Why wasn't it the case that during the�2� �exit interview that you would have advised ECOT�3� �that the information provided did not satisfy�4� �the 2015 FTE manual?�5� � � �A.�Why didn't I?�6� � � �Q.�Yes, sir.�7� � � �A.�Because it was pretty obvious that it�8� �didn't.�9� � � �Q.�Well, during the exit interview you told10� �us that you commented positively on the records11� �they did produce in terms of their appearance12� �and their satisfaction of requirements.13� � � �A.�Right.14� � � �Q.�If you're going to comment positively,15� �why wouldn't you have commented negatively to16� �them about noncompliance issues?17� � � �A.�In the exit interview?18� � � �Q.�Yes, sir.19� � � �A.�I just didn't.20� � � �Q.�So was there any -- subsequent to the21� �exit interview, did you orally communicate to22� �ECOT that it was noncompliant with the standards23� �set forth in the 2015 FTE manual?24� � � �A.�No.
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�1� � � �Q.�And to your knowledge, was there anyone�2� �else associated with ODE that orally�3� �communicated to ECOT that it was noncompliant�4� �with the standards set forth in the 2015 FTE�5� �manual?�6� � � �A.�No.�7� � � �Q.�And so was the first occasion that you�8� �expected that would be communicated to ECOT is�9� �when ECOT was provided a copy of the FTE review10� �report from the March review either in a form11� �much like what has been attached here as Exhibit12� �56 or in a cover letter reciting this same data?13� � � �A.�Yes.14� � � �Q.�Did you receive any response from15� �Ms. Lease to your correspondence of April 1516� �that we've marked as Plaintiff's Exhibit 56?17� � � �A.�No.18� � � �Q.�And without telling me the content, did19� �you have any communications with Ms. Lease20� �regarding the subject of the FTE review report21� �form?22� � � �A.�I don't believe so.23� � � �Q.�Or the letter that was ultimately24� �composed based upon the contents of this report
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�1� �form?�2� � � �A.�No.�3� � � �Q.�If I could please direct your attention�4� �to Plaintiff's Exhibit 58.�Do you recognize�5� �that exhibit as, first, an email that was�6� �provided by Alice Dewar to you on April 21,�7� �2016?�8� � � �A.�Yes.�9� � � �Q.�And the letter that is attached to this10� �email, was this composed by Ms. Dewar?11� � � �A.�No.12� � � �Q.�Who composed this letter?13� � � �A.�This would be my letter.14� � � �Q.�And could you explain the process by15� �which Ms. Dewar is forwarding to you a copy of a16� �letter you composed?17� � � �A.�No.�I don't know why.�I might have --18� �well, I may know why.�I may have asked her to19� �proof the letter for me.20� � � �Q.�Okay.21� � � �A.�She's a former English teacher.22� � � �Q.�Is there anyone else that assisted you23� �in the drafting of the letter included as part24� �of Exhibit 58 other than perhaps one -- someone
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�1� �offering typographical or English corrections?�2� � � �A.�No, I would have talked with each of the�3� �people on the review team, but I would have�4� �drafted the letter myself.�5� � � �Q.�Okay.�So you -- you drafted the letter�6� �with the input from the members of the review�7� �team?�8� � � �A.�Yeah, whatever they had available on the�9� �day -- you know, on the day that we finished the10� �review, I would have gathered all -- all the11� �information.12� � � �Q.�And was there anyone else that assisted13� �you, other than the review team, in drafting the14� �letter or otherwise had input in it?15� � � �A.�No.16� � � �Q.�You drafted the April 20, 2016, letter17� �based upon what you understood to be the18� �requirements and standards of the 2015 review19� �manual?20� � � �A.�Yes.21� � � �Q.�And I take it, then, you would have22� �drafted this letter sometime prior to April 21,23� �2016?24� � � �A.�Yes.
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� � � �Q.�And do you recall whether after you�2� �drafted it, there were any revisions or changes�3� �made other than with respect to typographical�4� �type of issues?�5� � � �A.�I don't think so.�6� � � �Q.�Was there a form letter that was made�7� �available to you to assist in the preparation of�8� �this?�9� � � �A.�Yes.10� � � �Q.�And when we're looking at the April 2011� �letter, can you give us a sense of what portions12� �of this would have been from a form letter13� �versus content that you created?14� � � �A.�Well, basically, the form letter talked15� �about -- starting out describing the school a16� �little bit better.�The basic guts of the letter17� �were the same.18� � � � � �As you can see, I pretty much took the19� �report form, which I used to think was good20� �enough to send, and then put it in the report21� �letter form that I was asked to put it in. I22� �think it covers the same information.23� � � �Q.�Okay.�That is, the report you initially24� �drafted served as the foundation for much of the
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�1� �content --�2� � � �A.�Right.�I would have cut it -- cut and�3� �pasted off of the report form and put it in --�4� �you know, put it into my letter.�5� � � �Q.�Looking at the third paragraph of the�6� �April 20, 2016, letter, and I'd like to direct�7� �your attention to the language that says,�8� �"Logins from ECOT learning management system�9� �that identify the length of time the student was10� �logged into the learning management system was11� �also available for each student in the file."12� � � � � �Do you see that?13� � � �A.�Yes.14� � � �Q.�And then it reads, "Most login times on15� �these files did not substantiate five hours per16� �day of login time for the students reviewed.17� �ECOT staff reported that the learning management18� �system was only one of many ways for the student19� �time to be demonstrated, but other documents20� �were not in a form that would be available in21� �the amount of time the reviewers had to do the22� �initial review."23� � � � � �Do you see that?24� � � �A.�Yes.
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�1� � � �Q.�Do you -- but if I understood your prior�2� �discussions with Mr. Teeters, he had indicated�3� �not only could the records not be available to�4� �you during the course of the March review, but�5� �such records did not, in fact, exist at all; is�6� �that right?�7� � � �A.�No, I did not take it that way.�8� � � �Q.�Didn't he communicate to you that there�9� �are records that -- there's certain records10� �that -- or certain activities that are conducted11� �on the learning management system that are not12� �tracked from a time durational standpoint?13� � � �A.�Yes, he may have, but I understood it14� �that there were things that could be tracked and15� �that it would take a lot of documentation to16� �show that.17� � � �Q.�But I guess my question is, he indicated18� �to you there's a number of activities, in fact,19� �that are not tracked at all from a durational20� �standpoint?21� � � �A.�And he -- he could have told me that.22� � � �Q.�Okay.�Now, if you could please look at23� �the second page of your draft letter, the24� �paragraph at the top where it says,
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�1� �"Recommendations are as follows," do you see�2� �that?�3� � � �A.�Yes.�4� � � �Q.�It says, at the last sentence, "ECOT is�5� �encouraged to develop a system of tracking total�6� �hours of student participation."�7� � � � � �Do you see that?�8� � � �A.�Yes.�9� � � �Q.�Did that letter -- that language come10� �from a form letter?11� � � �A.�No, I don't believe.12� � � �Q.�And your letter doesn't indicate the13� �time frame for ECOT to develop that system?14� � � �A.�No, it doesn't.15� � � �Q.�Did you, at any point in time, have16� �communications with ECOT about the time frame17� �for developing such a system?18� � � �A.�No.19� � � �Q.�Did you mean to communicate to ECOT that20� �it would be important at some point in the21� �future that such a system be developed?22� � � �A.�Yes.23� � � �Q.�And what was your expectation as to when24� �such a system had to be developed?
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� � � �A.�I didn't have an expectation.�2� � � �Q.�Sir, let me show you what I've marked as�3� �Plaintiff's Exhibit 59.�Bear with me for a�4� �second.�5� � � � � �Let me show you what I've marked as�6� �Plaintiff's Exhibit 59, please.�Sir, is�7� �Plaintiff's Exhibit 59 a copy of a�8� �correspondence of April 21, 2016, to Ms. Lease�9� �from yourself?10� � � �A.�Yes.11� � � �Q.�And that forwarded your draft of the12� �ECOT FTE review letter?13� � � �A.�Yes.14� � � �Q.�And who requested you that -- requested15� �that you forward that to Ms. Lease?16� � � �A.�I would think Cody Loew.17� � � �Q.�And do you have a recollection of18� �speaking to Ms. Lease regarding that subject?19� � � �A.�No, I don't believe so.20� � � �Q.�Did Mr. Loew ask you why -- excuse me.21� � � � � �Did Mr. Loew at any point in time22� �provide you an explanation as to why you would23� �forward that to Ms. Lease?24� � � �A.�No.�My understanding would be that he
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�1� �wanted legal to look at it.�2� � � �Q.�Had you had legal review any other FTE�3� �review letters?�4� � � �A.�From ECOT?�From anyone?�5� � � �Q.�From anyone.�6� � � �A.�No.�Prior to this, no.�7� � � �Q.�After this, did you have any other FTE�8� �review letters reviewed by legal with respect to�9� �any other school other than ECOT?10� � � �A.�At some point in time, we were directed11� �to start putting all of the FTE review reports,12� �checklists on an O drive to ODE so someone else13� �could look at them before they went out.14� � � �Q.�Okay.�You received some type of15� �documentation from Cody authorizing the release16� �of documents?17� � � �A.�Usually that has been coming from Chris18� �Babal.19� � � �Q.�Okay.�I'll show you what's been marked20� �as Plaintiff's Exhibit 61.�Sir, is Exhibit 61 a21� �correspondence that you and others received by22� �Mr. Loew on or about May 2nd, 2016?23� � � �A.�Yes.24� � � �Q.�And among other things, this provides a
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�1� �final FTE review checklist?�2� � � �A.�Yes.�3� � � �Q.�The first paragraph of the exhibit�4� �references that there had been a meeting at ODE�5� �on a Friday afternoon, presumably the Friday�6� �before this May 2nd meeting.�Were you a�7� �participant in that meeting?�8� � � �A.�Yes.�9� � � �Q.�And indicated that there were a number10� �of questions and concerns expressed during the11� �course of that meeting.�Was that a meeting of12� �the area coordinators?13� � � �A.�Yes.14� � � �Q.�And do you recall any questions or15� �concerns expressed as to matters relating to16� �durational records?17� � � �A.�Not specifically.�I think the attached18� �form -- you know, this is -- this was new.�We19� �had the checklist, but this was a more detailed20� �checklist where we had spaces to write comments21� �and things of that nature.�I think he wanted22� �everybody on the same -- he wanted to uni --23� �unify the process a little bit.24� � � �Q.�That is, the checklist that had been
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�1� �utilized by the -- as part of the March review�2� �of ECOT was a checklist you had based upon the�3� �2015 FTE manual?�4� � � �A.�Yes.�5� � � �Q.�And was this checklist here supplanting�6� �the checklist found in the 2015 FTE manual?�7� � � �A.�Yes, I think this is -- this is the�8� �draft of -- of the checklist that we're supposed�9� �to use on each review.10� � � �Q.�Now, during the course of this late11� �April 2016 meeting, was any information provided12� �as to delays in issuing the initial FTE review13� �letters?14� � � �A.�I'm sorry, I don't understand your15� �question.16� � � �Q.�Sure.�Was there any discussions that17� �occurred at this meeting about any delays that18� �were occurring in issuing the initial FTE review19� �letters?20� � � �A.�No.21� � � �Q.�The initial FTE review letter that you22� �had drafted had a date of April 20, 2016?23� � � �A.�Yes.24� � � �Q.�Do you understand that letter was not
�John Wilhelm
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�1� �mailed out for some time?�2� � � �A.�Yes, because I would have mailed it out.�3� � � �Q.�When would you have mailed it out?�4� � � �A.�As soon as I was authorized to release�5� �it.�6� � � �Q.�You were prepared to release it on April�7� �20th, 2016?�8� � � �A.�Yes.�9� � � �Q.�And what was the delay that was10� �occasioned in having the letter not issued until11� �much later?12� � � �A.�I don't know.13� � � �Q.�Did you make follow-up inquiries to14� �determine what was the holdup, if you will, in15� �issuing the initial FTE review letter?16� � � �A.�Yes.17� � � �Q.�And to whom did you make those18� �inquiries?19� � � �A.�I'm going to guess to Cody Loew.20� � � �Q.�And do you recall on how many different21� �occasions you would have inquired as -- to22� �Mr. Loew as to the status in having the initial23� �review letter issued?24� � � �A.�No.
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�1� � � �Q.�Do you recall what explanation, if any,�2� �that Mr. Loew offered you for the delay in -- in�3� �issuing the initial FTE review letter?�4� � � �A.�No.�Just that it was still being�5� �reviewed.�6� � � �Q.�Was the review letter that you�7� �ultimately sent out in the same form as the one�8� �that you had initially drafted?�9� � � �A.�Yes, I believe so.10� � � �Q.�And let me show you what's been marked11� �as Plaintiff's Exhibit 67.�Sir, is Plaintiff's12� �Exhibit 67 the May 17 email that you sent to13� �Mr. Teeters, and others, providing the ECOT14� �initial review letter that had been dated April15� �20, 2016?16� � � �A.�Yes.17� � � �Q.�And would this have then been the first18� �letter -- excuse me, first form of communication19� �in which ODE, to your knowledge, communicated to20� �ECOT that the record and documentation provided21� �as part of the March review did not substantiate22� �the FTEs for a number of the students?23� � � �A.�Yes.24� � � �Q.�Did you have discussions with Mr. Loew,
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�1� �or anyone else at ODE, as to the action plan to�2� �address the issues at ECOT inasmuch as in the�3� �correspondence transmitted on May 17, 2016, it�4� �was being disclosed to ECOT that ODE's position�5� �was that the FTEs had not been sufficiently�6� �documented?�7� � � �A.�Did I have further discussions with�8� �Mr. Loew?�9� � � �Q.�Yes, sir.10� � � �A.�Is that your question about that?�No.11� � � �Q.�Did you have any further discussions12� �with anyone else at -- excuse me -- ODE as to --13� �other than Mr. -- Mr. Loew regarding that14� �subject?15� � � �A.�No.16� � � �Q.�What was your understanding, then, as to17� �how you were to proceed moving forward with ECOT18� �given the findings expressed on May 17 that the19� �documentation provided did not substantiate the20� �FTEs?21� � � �A.�We were told to complete the second22� �review and document what we saw.23� � � �Q.�Were you given any other guidance or24� �instruction from ODE on how to complete the ECOT
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�1� �FTE review for '16 other than move forward in�2� �implementing the 2015 FTE manual?�3� � � �A.�No.�4� � � �Q.�So as of the transmittal of the letter�5� �of May 17, 2016, by you to Mr. Teeter, the only�6� �standards that have been provided to you by ODE�7� �on how to complete this FTE review are those set�8� �forth in the 2015 FTE manual?�9� � � �A.�Yes.10� � � �Q.�If you could please look at the second11� �page of your letter that was forwarded to12� �Mr. Teeters.�As of --13� � � �A.�Second page?�Sorry.14� � � �Q.�I apologize.�I should be more precise15� �in my -- my question.�The second page of the16� �letter, not the exhibit.17� � � �A.�Right.18� � � �Q.�Again, the language we had where it19� �says, "ECOT is encouraged to develop a system of20� �tracking total hours of student participation,"21� �that's the language that was in your original22� �letter; is that correct?23� � � �A.�Yes.24� � � �Q.�And no one from ODE had asked you to
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� �strike that language from your letter; is that�2� �right?�3� � � �A.�No.�4� � � �Q.�That is correct, no one's asked you to�5� �strike --�6� � � �A.�That's correct.�7� � � �Q.�And at this point in time, when this is�8� �communicated on May 17, 2016, you still haven't�9� �communicated to ECOT, from your perspective, a10� �timeline for the development of a system of11� �tracking total hours of student participation?12� � � �A.�That is correct.13� � � �Q.�And as of May 17, 2016, you've still not14� �had any discussions with your supervisor or15� �anyone at ODE regarding what that timetable16� �would be?17� � � �A.�That's correct.18� � � �Q.�The only timetable you're aware of is19� �the expectation as set forth in memorializing20� �your letter that the 2015 manual requires that21� �type of documentation to be available now?22� � � �A.�Yes, that's correct.23� � � �Q.�That is, it should have been available,24� �according to you, pursuant to that handbook, for
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�1� �purposes of the 2016 FTE review; is that right?�2� � � �A.�Yes.�3� � � �Q.�Let me show you what I've marked as�4� �Plaintiff's Exhibit 68.�Sir, is Exhibit 68 a�5� �copy of an email sent from Mr. Teeters to you on�6� �May 19, 2016, after the forwarding by you to him�7� �of your initial FTE review letter?�8� � � �A.�Yes.�9� � � �Q.�And on receipt of this letter, did you10� �share it with anyone else at ODE?11� � � �A.�Yes.12� � � �Q.�And with whom did you share it?13� � � �A.�I would guess that I emailed it to Cody14� �Loew.15� � � �Q.�And did you discuss this letter with16� �Mr. Loew?17� � � �A.�No, I don't think so.18� � � �Q.�Did Mr. Loew respond to you in any way19� �after you forwarded a copy of what's been marked20� �as Plaintiff's Exhibit 68 to him?21� � � �A.�I don't think so, other than talking22� �about trying to schedule the next -- the final23� �review.24� � � �Q.�So you did not discuss with Mr. Loew
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�1� �any -- from a substantive standpoint, any of the�2� �contentions set forth in Mr. Teeters' letter?�3� � � �A.�No.�4� � � �Q.�And did you respond to Mr. Teeter any of�5� �the substantive issues raised in Mr. Teeters'�6� �letter?�7� � � �A.�No.�8� � � �Q.�And why not?�9� � � �A.�I just wanted that to come directly from10� �ODE at this point.11� � � �Q.�Do you know whether or not anyone at ODE12� �had responded to any of the substantive points13� �raised in Mr. Teeters' letter?14� � � �A.�I don't know.15� � � �Q.�And did you make any effort to inquire16� �further to determine whether someone was going17� �to respond to the substantive issues raised by18� �Mr. Teeters in his May 19 correspondence?19� � � �A.�No.20� � � �Q.�In the first -- there's -- there's four21� �numbered paragraphs in Mr. Teeters'22� �correspondence --23� � � �A.�Yes.24� � � �Q.�-- do you see that?
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�1� � � � � �And in the second paragraph, under�2� �number 1, it says, "Based on these statements,�3� �it's unclear to me whether ODE is requiring�4� �documentation of five hours per day of actual�5� �login time for purposes of this year's FTE�6� �review or whether it is simply recommending that�7� �ECOT begin implementing such documentation in�8� �the future.�Please advise whether ODE is�9� �specifically requiring ECOT to provide10� �documentation of actual login time (specifically11� �deeming such documentation to be a prerequisite12� �to FTE funding) for the 2015-2016 school year."13� � � � � �Do you see that?14� � � �A.�Yes.15� � � �Q.�You would agree that a response to that16� �question would be appropriate, correct?17� � � �A.�I -- I was, at that point, referring18� �these letters to the department for their19� �response.20� � � �Q.�Did you receive any other letters21� �comparable to this from any other eSchools that22� �you would have forwarded to Mr. Loew or other23� �individuals at ODE for response?24� � � �A.�No.
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� � � �Q.�I take it from how you described your�2� �job duties earlier that in the ordinary course�3� �when you receive a question from one of the�4� �schools that you're servicing, you always make�5� �your best effort to respond to those inquiries?�6� � � �A.�If I -- if it was appropriate, yes.�7� � � �Q.�And you certainly have had schools�8� �within your region that have asked questions�9� �that you've answered, in part, by providing them10� �excerpts of the FTE manual?11� � � �A.�Yes.12� � � �Q.�And certainly the inquiry made by13� �Mr. Teeters in his May 19, 2016, correspondence14� �as to what documentation would be required to be15� �produced for purposes of FTE funding for the16� �2015-2016 school year would be information that17� �was important to know for purposes of preparing18� �for the second portion of the 2016 FTE review;19� �is that right?20� � � �A.�Yes.21� � � �Q.�Now, let me show you what I've marked as22� �Plaintiff's Exhibit 69.23� � � � � �And I should have asked, after the24� �forwarding of your letter to Mr. Teeters of the
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�1� �initial FTE review results, did you have any�2� �oral communications with him in anticipation of�3� �the final phase of the 2016 FTE review?�4� � � �A.�With Mr. Teeters?�5� � � �Q.�Yes, sir.�6� � � �A.�I don't recall if we had a phone con --�7� �yeah, we did have a phone conference when we�8� �couldn't schedule -- couldn't get the last one�9� �scheduled.10� � � �Q.�That related to the simple scheduling11� �itself?12� � � �A.�Yes.13� � � �Q.�Did you have any substantive discussions14� �with him about the methodology that would be15� �employed for completing the review?16� � � �A.�No.17� � � �Q.�And was -- was there anyone else that18� �you would have spoken to after the forwarding of19� �the initial FTE review letter other than20� �Mr. Teeters at ECOT?21� � � �A.�No.22� � � �Q.�Now, looking, please, at Plaintiff's23� �Exhibit 69, do you recognize this as a24� �correspondence from Mr. Loew of May 20, 2016?
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�1� � � �A.�Let me take a look at it.�2� � � �Q.�Sure.�3� � � �A.�Yes, I recognize this.�4� � � �Q.�Okay.�And among other things, in this�5� �letter, Mr. Loew is identifying certain eSchools�6� �that are ineligible for desk audits and -- as�7� �part of the FTE process in 2016?�8� � � �A.�Yes.�9� � � �Q.�Is this the first time that these type10� �of limitations had been placed by the department11� �on these categories of desk audits?12� � � �A.�I can't answer that.�I don't know.13� � � �Q.�Was it the first time it was14� �communicated to you that there were these --15� �these type of limitations placed on desk audits?16� � � �A.�Yes.17� � � �Q.�Looking at the third bullet down, it18� �says, "I know some of you already have FTE19� �reviews underway.�It's worth pointing out again20� �to contact our office and Frank Stoy prior to21� �the review.�You should contact him before the22� �initial review and again before the final23� �review.�A lot can and does change between these24� �time periods.�Please give Chris your schedule
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�1� �so he knows when reviews are taking place."�2� � � � � �Who's Frank Stoy?�3� � � �A.�Frank Stoy works out of the department,�4� �I think, for the office of community schools, as�5� �opposed to our offices, office of funding and�6� �school choice.�7� � � �Q.�Would you have had the occasion to or�8� �need to speak to Mr. Stoy regarding the 2016 FTE�9� �reviews?10� � � �A.�No.11� � � �Q.�And prior -- prior to proceeding forward12� �with the second review of ECOT in 2016, I take13� �it that you would have reached out to Mr. Loew's14� �office to advise him that the review was going15� �to be conducted?16� � � �A.�Yes.17� � � �Q.�And was there any additional guidance or18� �information provided by Mr. Loew or anyone else19� �in his office as to the manner for which you20� �were to conduct the second phase of the ECOT21� �2016 FTE review?22� � � �A.�No.23� � � �Q.�So then the -- even as of this point in24� �May of 2016, the sole basis for conducting the
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
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�1� �review was the 2015 FTE review manual?�2� � � �A.�Yes.�3� � � �Q.�Do you know what the reference is to "a�4� �lot can and does change between the initial and�5� �final review"?�6� � � �A.�I can only guess that that's talking�7� �about if something has happened at the school�8� �that the reviewer should know about between the�9� �first review and the second review.�If they've10� �run into problems, I think it's a -- a11� �precaution to say, you know, check in and make12� �sure there aren't other things that you need to13� �be aware of before you go out to the review.14� � � �Q.�I'll show you Plaintiff's Exhibit 70.15� � � � � �Sir, do you recognize Exhibit 70 as16� �including, at the top, an email from Mr. Teeters17� �to, among others, yourself, asking for a18� �response to his May 19, 2016, correspondence?19� � � �A.�Yes.20� � � �Q.�And after receiving this email, did you21� �follow up with Mr. Rausch or Mr. Loew to22� �determine whether ODE was going to respond to23� �Mr. Teeters' correspondence?24� � � �A.�No.
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�1� � � � � �THE VIDEOGRAPHER:�I've got about five�2� �minutes left on this video.�3� � � � � �MR. LITTLE:�Why don't you go ahead and�4� �change that out then.�5� � � � � �THE VIDEOGRAPHER:�Off the record.�6� � � � � �(Recess.)�7� � � � � �THE VIDEOGRAPHER:�Back on the record.�8� �BY MR. LITTLE:�9� � � �Q.�Sir, do you recall receiving10� �instructions to not proceed with the final11� �review of ECOT?12� � � �A.�In relation to this document?13� � � �Q.�Just in general.�I'm just asking you in14� �general.�I handed that out to get it --15� �expedite our discussion, but I'm asking the16� �question in general.17� � � �A.�That I should not schedule the final18� �review?19� � � �Q.�Yes.20� � � �A.�No, I was trying to schedule it as soon21� �as I could, as I recall.22� � � �Q.�Okay.�So if I could have you look now23� �at Plaintiff's Exhibit 79, and there is an24� �email, the second one from the top, from Cody
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�1� �Loew to Alice Dewar that says -- dated July --�2� �excuse me, June 21, that says, "Hold on�3� �contacting ECOT right now."�4� � � � � �Do you see that?�5� � � �A.�Yes.�6� � � �Q.�Who was coordinating the rescheduling�7� �of -- or excuse me, the scheduling of the final�8� �phase of the FTE review for ECOT?�Was it you or�9� �was it Ms. Dewar?10� � � �A.�No, it was me, but I was -- as we got11� �into June, I had some vacation times and I was12� �out of town for several days.�And at one point,13� �I asked Abby if she could -- Alice -- if she14� �could keep in contact with Cody and find out15� �what days we were going to go.16� � � �Q.�Okay.�If you look at the email below17� �that from Alice or Abby Dewar, dated June 21,18� �2016, it says, "Cody, just for clarification, do19� �you want me to contact both Ron and Jack Pierson20� �to go with us or just one of them?�I honestly21� �believe it would be good to have them both since22� �there are so many files.�Please advise.�Also,23� �I will contact Rick at ECOT and explain that we24� �will plan to be at ECOT July 5, 6, and 7.�There
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�1� �is no doubt that we will need clear direction in�2� �regard to the exact information that you expect�3� �us to glean during the file reviews."�4� � � � � �Do you see that?�5� � � �A.�Yes.�6� � � �Q.�And do you recall participating in any�7� �communications with any of the folks at ECOT�8� �regarding -- excuse me, ODE -- regarding�9� �questions or ambiguities as to what specific10� �documentation would be expected to be produced11� �by ECOT at the final FTE review in July of 2016?12� � � �A.�No.13� � � �Q.�From your standpoint, the expectation14� �was that ECOT would be required to produce all15� �of the information set forth in the July --16� �excuse me, the 2015 FTE manual at the July 201617� �FTE review; is that right?18� � � �A.�Yes.19� � � �Q.�And your expectation was that at the20� �July 2016 FTE review, ECOT would be required to21� �produce documents that would satisfy the22� �requirements and standards set forth in the 201523� �FTE manual?24� � � �A.�Yes.
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�1� � � �Q.�And your testimony is at no time prior�2� �to the July 2016 FTE review at ECOT did anyone�3� �at ECOT -- excuse me, anyone at ODE suggest to�4� �you that there would be any other set of�5� �standards applied to ECOT other than those set�6� �forth in the 2015 FTE review manual?�7� � � �A.�Well, the document -- the comment that�8� �was made was document what you see.�9� � � �Q.�I understand that, but no one suggested10� �to you that there would be a different standard11� �applied to ECOT versus -- other than what was12� �set forth in the 2015 FTE review manual; is that13� �right?14� � � �A.�That's correct.15� � � �Q.�Now, do you recall being requested by16� �ECOT to provide the list of the student names as17� �quickly as possible?18� � � �A.�Yes.19� � � �Q.�Okay.�And who made that request to you?20� � � �A.�I don't know if it was Rick or -- it21� �would probably have been Rick.22� � � �Q.�And let me show you whether -- excuse23� �me.�Let me show you what I've marked as24� �Plaintiff's Exhibit 83.�Are you copied on the
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�1� �email at the top of the first page of�2� �Plaintiff's Exhibit 83 from Cody Loew to�3� �yourself and Alice Dewar?�4� � � �A.�Uh-huh.�Yes.�5� � � �Q.�And Mr. Loew is advising you that, do�6� �not send out the list of students' files to be�7� �reviewed at ECOT prior to the timeline set forth�8� �in the guidelines even though there are a lot of�9� �records?10� � � �A.�Yes.11� � � �Q.�And that was true even though the12� �request was being submitted during the 4th of13� �July weekend?14� � � �A.�Well, specifically, I think there was15� �two workdays in there.16� � � �Q.�If I understand the request at the17� �middle of the page from Abby or Alice Dewar to18� �Cody is, do you want me to go ahead and forward19� �this to Rick at ECOT?�I think it's important to20� �give him as much time as possible to pull files,21� �especially because of the 4th of July.22� � � �A.�Right.23� � � �Q.�Please advise.�Do you see that?24� � � �A.�Yes.
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�1� � � �Q.�You were copied on that email?�2� � � �A.�Yes.�3� � � �Q.�And you would have thought that would�4� �have been a fair request by Ms. Dewar?�5� � � �A.�Well, fair is the time that's in the�6� �manual is what they were following, so...�7� � � �Q.�Fair is that historically you've�8� �provided much more time than what's set forth in�9� �the manual; is that right?10� � � �A.�In FY11 I certainly did.11� � � �Q.�Okay.�Do you think that given the12� �volume of the records that were being requested13� �here, it would have made more sense to provide14� �ECOT more notice than two days' business notice15� �given that the request was submitted during the16� �4th of July holiday week?17� � � �A.�I would have had no problem with that.18� � � �Q.�Now, are you saying that at least as of19� �June 27, 2016, you're not given any more20� �specific instructions from anyone at ODE about21� �how to conduct this review other than to appear22� �on certain dates and conduct the review in the23� �ordinary fashion?24� � � �A.�Yes.
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�1� � � �Q.�As of the time that the review was�2� �conducted -- excuse me.�At the time the review�3� �was conducted in July, you had understood that�4� �ECOT had sued the Department of Education?�5� � � �A.�Yes.�6� � � �Q.�And who advised you of that?�7� � � �A.�Give me some time to think on that.�It�8� �was shortly before we went out there, and I�9� �believe that it was Cody.�Diane Lease may have10� �been there, also.11� � � �Q.�Was that an in-person meeting?12� � � �A.�Yes.�We went to the department first,13� �the day of -- the first day of the review.14� �Because we weren't able to go out until the15� �judge heard the issues.16� � � �Q.�Who else did you meet with other than17� �Ms. Lease and Mr. -- Mr. Loew?18� � � �A.�Formally, no one.�There was another19� �lawyer at ODE that day that worked with Diane20� �Lease, but I don't -- I didn't really meet with21� �her.�She was in the offices.22� � � �Q.�Okay.�Were you given any instructions23� �on how to conduct the FTE review based upon your24� �meeting with Cody Loew and Ms. Lease?
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�1� � � � � �MR. COLE:�And here I would caution you�2� �that to the extent you received legal advice�3� �from Ms. Lease, you are instructed not to share�4� �that with Mr. Little.�5� � � � � �THE WITNESS:�All right.�6� �BY MR. LITTLE:�7� � � �Q.�The only thing I've asked at this point�8� �is whether you received any advice.�I'm not�9� �asking for you to share the advice with me.10� � � � � �See the distinction?11� � � �A.�I do, but I'm looking at you two.12� � � � � �MR. COLE:�If you were given -- I'm13� �going to assert attorney/client privilege to the14� �extent you received any advice at that meeting15� �with Ms. Lease.16� � � � � �If you had a meeting separately with17� �Mr. Loew at which you did not discuss legal18� �advice that Ms. Lease had given, but rather19� �operational instructions from Mr. Loew, you can20� �testify as to that.21� � � � � �THE WITNESS:�Okay.22� � � �A.�I don't believe there was any additional23� �information given.24� �BY MR. LITTLE:
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�1� � � �Q.�And I'll just ask you the question for a�2� �yes or no response.�Did Ms. Lease give you�3� �legal advice that day?�4� � � �A.�No, I don't believe.�5� � � �Q.�Did you solicit any legal advice from�6� �Ms. Lease that day?�7� � � �A.�No.�8� � � �Q.�So what did you and Ms. Lease discuss?�9� � � �A.�I don't recall.�I mean, we didn't have10� �a long discussion.11� � � �Q.�And was it -- did any of the other12� �individuals who participated in the FTE review13� �also attend this meeting?14� � � �A.�No.15� � � �Q.�So later that afternoon you appeared at16� �ECOT's offices?17� � � �A.�Yes.18� � � �Q.�And you were given access to how many19� �student files at that point?20� � � �A.�The first 600.21� � � �Q.�And then did you provide that day a22� �request for another 150 files?23� � � �A.�Yes.24� � � �Q.�In the course of three days, were you
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�1� �given access to 750 student files?�2� � � �A.�Yes.�3� � � �Q.�And were the contents of those files�4� �such that if you were conducting the review�5� �based upon the standards and requirements that�6� �were in place in 2011 that you would have�7� �identified the documentation as being sufficient�8� �to support the FTEs claimed?�9� � � �A.�No.10� � � �Q.�What were the issues that were -- that11� �existed with respect to any of the files or12� �records based upon the standards or requirements13� �of 2011?14� � � �A.�Oh, 2011 or 2015?15� � � �Q.�I said earlier 2011.16� � � �A.�Oh.�Can you ask me that one again?17� � � �Q.�Oh, sure.�That's fine.18� � � �A.�I'm losing it.19� � � �Q.�Were the contents of the files such that20� �if you were conducting the review based upon the21� �standards and requirements that were in place in22� �2011 that you would have identified the23� �documentation as being sufficient to support the24� �FTEs being claimed?
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�1� � � �A.�There were some changes in the documents�2� �the second time around.�Let me think about what�3� �was there.�The -- the login/logout time was not�4� �there, but there was a way to determine login�5� �time, and we were able to determine whether�6� �there was 105 hours in between logins.�So, yes,�7� �I would say that's a yes.�8� � � �Q.�Okay.�9� � � �A.�And all the other documents were there,10� �the special ed. documents and the birth11� �certificates and proofs of residence.12� � � �Q.�So the only documentation that was not13� �present for the July FTE review was that14� �additional documentation that was being15� �requested for the first time starting in January16� �2016?17� � � �A.�Yes.18� � � �Q.�Now, did you -- the records that were19� �produced included records that allowed you to20� �make a determination that more than -- excuse21� �me -- less than 105 hours elapsed between a22� �student's login on the computers?23� � � �A.�Yes.24� � � �Q.�And what's your purpose in making that
�John Wilhelm
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�1� �inquiry?�2� � � �A.�I'm sorry?�3� � � �Q.�Why do you make that inquiry?�4� � � �A.�On the 105 hours?�5� � � �Q.�Yes, sir.�6� � � �A.�Because that's what we've always done.�7� � � � � �That is to determine whether or not the�8� �student has to be withdrawn if they did not have�9� �a -- a login time between that period.10� � � �Q.�Now, with respect to any form of11� �durational records, your testimony is there was12� �none made available to you at that time?13� � � �A.�During the second review?14� � � �Q.�Yes, sir.15� � � �A.�Yes, there was not.16� � � �Q.�And was there an exit interview17� �conducted at the conclusion of the -- the final18� �FTE review?19� � � �A.�Yes.�I was not there the third day, so20� �I think Abby Dewar did that.21� � � �Q.�Did you assist her in preparing the22� �statements for the exit interview?23� � � �A.�No.�No.�I wasn't there.24� � � �Q.�Your -- your participation, then, in
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�1� �this -- what I term the final portion of the FTE�2� �review would have been limited to the day and a�3� �half of time?�4� � � �A.�First -- yes.�Yes, because the first�5� �day was short.�6� � � �Q.�Based upon the review that you�7� �participated in, did you compile any form of�8� �records or report?�9� � � �A.�No.�We were just compiling the usual10� �information on whether the students met the time11� �or the login times and the -- and checking the12� �special ed. records, checking birth13� �certificates.14� � � �Q.�So did you -- was your review for the15� �final portion of the FTE review limited to the16� �application of the standards that had been17� �placed in 2011?18� � � �A.�Yes.19� � � �Q.�Did you, however, make an attempt to20� �review any records with respect to the new21� �standards put in place in January 2016?22� � � �A.�Yes.�2015.23� � � �Q.�2 -- okay.�And with respect to those --24� �the new standards, did you conclude that the
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�1� �documentation was not being produced?�2� � � �A.�Yes.�3� � � �Q.�Was that something that you would have�4� �memorialized in some form of report?�5� � � �A.�Yes.�6� � � �Q.�And what's the form of report that you�7� �would have prepared based upon the completion of�8� �the final or the second phase of the 2016 FTE�9� �report?10� � � �A.�It would be the report form, the11� �checklist, and the FTE review letter.12� � � �Q.�Are those three different documents?13� � � �A.�Yes.14� � � �Q.�And the report form you would have --15� �when did you complete the preparation of that?16� � � �A.�Oh, within -- again, within probably ten17� �days of the final review, I would have gathered18� �notes from Abby and relied on -- on Abby's notes19� �for the total three days and then put that20� �together.21� � � �Q.�And to whom would you have submitted22� �that report?23� � � �A.�I would have submitted it on the O drive24� �to ODE.
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�1� � � �Q.�And would you have notified Mr. Loew�2� �that that had occurred?�3� � � �A.�Yes.�4� � � �Q.�And then the checklist you referred to,�5� �when did you complete that?�6� � � �A.�I completed them all when I -- I didn't�7� �send any of them on the O drive until I had them�8� �all complete.�9� � � �Q.�Okay.�So within ten days or so of the10� �completion of the July FTE review, you would11� �have completed first the report form, second the12� �checklist, and then third the FTE review letter?13� � � �A.�Yeah, I can't verify that that's the14� �order, but I'm guessing that would be the order15� �I would do them in.16� � � �Q.�And nevertheless, once you completed17� �each three of those documents, you had18� �transmitted them to ODE through their placement19� �on the O drive?20� � � �A.�Yes.21� � � �Q.�And you would have, as to each of those22� �three items, advised Mr. Loew that they were23� �available for his further review?24� � � �A.�Yes.
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�1� � � �Q.�Did you receive any comments on any of�2� �those three documents from Mr. Loew or anyone�3� �else at ODE?�4� � � �A.�No.�5� � � �Q.�And the FTE review letter that you�6� �prepared, is that addressed to the attention of�7� �Rick Teeters?�8� � � �A.�Yes.�9� � � �Q.�Do you know whether that letter has been10� �issued by you to Mr. Teeters?11� � � �A.�I'm not aware that it's been issued.12� � � �Q.�And have you had any communications with13� �anyone at ODE as to the time frame for your14� �ability to issue that letter to Mr. Teeters?15� � � �A.�Ask me that question again.16� � � �Q.�Sure.�Have you had any communications17� �with anyone at ODE regarding the time frame for18� �your issuance of that letter to Mr. Teeters?19� � � �A.�I have inquired once as to when that was20� �going to be released so I could send it.21� � � �Q.�And to whom did you make that inquiry?22� � � �A.�Cody Loew.23� � � �Q.�And what response did he provide you?24� � � �A.�Didn't give a response.
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�1� � � �Q.�Did you make that inquiry --�2� � � �A.�It wasn't -- he said it wasn't -- they�3� �weren't ready to do that yet.�4� � � �Q.�Did he offer you any explanation as to�5� �why ODE was not prepared to allow you to proceed�6� �with issuing the final FTE review letter to�7� �ECOT?�8� � � �A.�No.�9� � � �Q.�Did you make inquiries to anyone else at10� �ECOT -- excuse me, ODE, as to the time frame for11� �the release of the final FTE review letter to12� �ECOT?13� � � �A.�I may have to Chris Babal.�And I can't14� �recall whether I would have sent that to them15� �both at the same time or one or the other, but16� �that would be the only other possibility would17� �be asking Chris.18� � � �Q.�And short -- and separate and apart from19� �any inquiries that you would have made, has20� �anyone else shared with you from ODE the -- any21� �issues or concerns with the release of that22� �letter to ECOT?23� � � �A.�I'm sorry, could you ask me that one24� �again?
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�1� � � �Q.�Sure.�I know sometimes people give you�2� �information based upon you asking a question or�3� �you prompting, but irrespective of whether you�4� �prompted the subject matter, has anyone at ODE�5� �shared with you any information as to the timing�6� �or the circumstances and the timing of that�7� �release of the final FTE review letter to ECOT?�8� � � �A.�No.�9� � � �Q.�Has the final FTE review letter been10� �issued to Findlay Digital?11� � � �A.�Yes.12� � � �Q.�And when did you complete that?13� � � �A.�I think I sent that out a week ago or14� �thereabouts.15� � � �Q.�And was there a particular form of16� �letter that you utilized in sending that to17� �Findlay; that is, was it a form letter, or how18� �was that -- how was that constructed?19� � � �A.�Same -- the same as the ones that you've20� �seen here for ECOT.21� � � �Q.�Okay.�So the -- the preliminary letter22� �that we've looked at is a form of letter that23� �was also used as part of the final FTE review24� �letter?
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�1� � � �A.�The -- the preliminary letter?�2� � � �Q.�Yes.�3� � � �A.�I'm not following you.�4� � � �Q.�You showed us the -- your drafts and the�5� �final letter that you sent to ECOT --�6� � � �A.�Uh-huh.�7� � � �Q.�-- showing the results from the March�8� �review, for example.�9� � � �A.�Right.10� � � �Q.�Is that the same form of letter you used11� �in crafting the final FTE review letter to ECOT?12� � � �A.�To ECOT, yes.13� � � �Q.�Okay.14� � � �A.�Were you talking about Findlay Digital?15� � � �Q.�Well, I was talking about Findlay16� �Digital, but I'm just trying to follow up on17� �your comment.18� � � �A.�Okay.19� � � �Q.�So --20� � � �A.�So Findlay Digital letter would have --21� �be in the same format that the ECOT letter would22� �be in.23� � � �Q.�Okay.�And the -- the ECOT letter that24� �you drafted and -- and placed on the O drive,
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�1� �it's in the same format as the prior preliminary�2� �draft letter that you had prepared?�3� � � �A.�Yes.�4� � � �Q.�Okay.�Now, what were the conclusions�5� �that you placed in your final FTE review letter�6� �for ECOT?�7� � � � � �THE WITNESS:�If that hasn't been�8� �completed yet, should I be saying that?�9� � � � � �MR. COLE:�It's fine.�You put together10� �a draft?11� � � � � �THE WITNESS:�Yeah.12� �BY MR. LITTLE:13� � � �Q.�And so what did the final say?14� � � �A.�The final said there was not15� �documentation for 920 hours.16� � � �Q.�And was that for each of the students17� �that were the subject of the review?18� � � �A.�Yes.19� � � �Q.�So for each of the 750 students that20� �were the subject of the FTE review in July of21� �2016 for ECOT, the conclusion you put in the22� �letter is there was not sufficient documentation23� �to support the 920 hours of learning24� �opportunities?
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�1� � � �A.�Yes.�2� � � �Q.�And was, in fact, the conclusion reached�3� �in your correspondence is that none of the FTEs�4� �for those 750 -- 750 students were documented?�5� � � �A.�None of the FTEs?�6� � � �Q.�Yes, sir.�7� � � �A.�There would be some FTEs for certain on�8� �all of those students.�9� � � �Q.�Did your letter document what portion of10� �the FTE was doc -- was supported --11� � � �A.�No.12� � � �Q.�-- and which was not?13� � � �A.�No.�There was no -- there was no way to14� �figure that.�There was no durational15� �information given on the second review.16� � � �Q.�Okay.17� � � �A.�There was no starting and ending time at18� �all.19� � � �Q.�So because there was not durational20� �records in place, your conclusion was that ECOT21� �had failed to document any of the learning22� �opportunity hours for those 750 students?23� � � �A.�You know, we -- we commented on the24� �difference.�There was the teacher certification
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�1� �letter that was in the second one.�2� � � �Q.�Yes, sir.�3� � � �A.�And I commented on that in some fashion�4� �as being a different document than we received�5� �the first time.�But I think I said that that�6� �didn't substantiate the 920 hours.�7� � � �Q.�So even with the benefit of the teacher�8� �certification, the conclusion that is reached in�9� �your letter that you prepared regarding the ECOT10� �June 2016 FTE review is that as to those 75011� �students, there is no -- no funding owed?12� � � �A.�I didn't say that.13� � � �Q.�Okay.�You concluded -- I'm sort of at a14� �disadvantage because I don't have your letter.15� � � �A.�Yeah, me too.16� � � �Q.�So let me -- let me see if I can -- let17� �me see if I can summarize this better.18� � � � � �Based upon the 2015 FTE manual and the19� �standards set forth therein, you concluded that20� �ECOT had not sufficiently documented the21� �learning opportunities for the 750 students that22� �had been reviewed as part of the 2016 July23� �review?24� � � �A.�Yes.
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�1� � � �Q.�Did your letter offer any type of�2� �recommendations or instruction to ECOT?�3� � � �A.�To develop documentation forms.�4� � � �Q.�Much like in your letter that was sent�5� �out in May, did this draft letter that you�6� �prepared in July or early August contain�7� �language recommending that ECOT develop, in the�8� �future, documentation or programs that would�9� �track student duration?10� � � �A.�I believe so, yes.11� � � �Q.�And was the same language used in your12� �draft letter for the July FTE review that was13� �used for the -- or found in your May letter?14� � � �A.�Say that one again.�I'm sorry.15� � � �Q.�Sure.�And, you know what, it's going to16� �be easier for me to pull out your prior letter,17� �so excuse me for just a second.18� � � �A.�Okay.19� � � �Q.�If you could please look back at20� �Plaintiff's Exhibit 67.21� � � �A.�Okay.�Got it.22� � � �Q.�And looking at the second page of the23� �letter that was sent out on May 17, 2016 -- and24� �we looked at this earlier -- it has the language
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�1� �in the last sentence of the first paragraph that�2� �ECOT is encouraged to develop a system of�3� �tracking total hours of student participation.�4� � � � � �Is that same language found in your --�5� �the draft letter that you prepared reflecting�6� �your findings from the June -- excuse me, the�7� �July 2016 FTE review?�8� � � �A.�I think so.�Without having that letter�9� �in front of me, I can't -- you know,10� �substantially, I don't think it was much11� �different language.12� � � �Q.�Okay.�And from a substantive13� �standpoint, was the letter that you prepared in14� �July -- strike that.15� � � � � �Based upon when you conducted the July16� �review, I assume that letter was completed17� �sometime in July by you?18� � � �A.�Yeah.�When -- remind me when the review19� �was.20� � � �Q.�The week following July 4th.21� � � �A.�So within ten days I would have had that22� �done.23� � � �Q.�Okay.�So sometime by the middle of24� �July, you would have completed that letter?
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�1� � � �A.�Yes.�2� � � �Q.�And that letter that you prepared by the�3� �middle of July summarizing your findings for the�4� �benefit of ECOT, was that letter -- did it�5� �pretty much track what we're looking at here in�6� �Exhibit 67?�7� � � �A.�Track in terms of the same formatting?�8� � � �Q.�Yes, sir.�9� � � �A.�Yes.10� � � �Q.�And did it track also, for the most11� �part, the same conclusions?12� � � �A.�Yes.�There were comments made in the13� �report regarding the differences in what we saw14� �the first time and the second time, and I think15� �some references to documents that were asked for16� �that we weren't -- we were told would not be17� �provided.18� � � �Q.�Okay.19� � � � � �MR. LITTLE:�Doug, I can check with20� �Chris, but do we have the report prepared by21� �this witness together with the checklist and the22� �FTE review letter?23� � � � � �MR. COLE:�I anticipated you'd be going24� �that way, and I'm already in communications to
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�1� �see whether it's been produced or not.�So I�2� �don't have a final answer on that yet.�3� � � � � �MR. LITTLE:�I'm happy to blame it all�4� �on Chris Hogan.�5� � � � � �MR. COLE:�I don't know that that's --�6� �would be correct, so I'm trying to track that�7� �down.�8� �BY MR. LITTLE:�9� � � �Q.�During the course of the July FTE review10� �at ECOT, do you recall any particular exchanges11� �that you had with any ECOT representatives?12� � � �A.�We called on -- who was in here earlier?13� � � �Q.�Brittny?14� � � �A.�Brittny.�Brittny was the only ECOT15� �employee that -- that was there the first two16� �days when I was there, and she was not in the17� �room unless we had a specific question to ask18� �her.19� � � �Q.�Okay.�Do you recall any specific20� �questions that were posed to her?21� � � �A.�I believe we asked early on to talk22� �about the teacher certification and what that --23� �what that meant, what it was showing us, and at24� �some point asked for durational login/logout
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�1� �sheets, or anything like that, which she�2� �deferred to legal counsel.�3� � � �Q.�Okay.�And you had legal counsel with�4� �you the entire time you were present?�5� � � �A.�The two days that I was there, yes.�6� � � �Q.�Okay.�7� � � �A.�I'm thinking she was there the first�8� �day.�She certainly was there the first day,�9� �yes.10� � � �Q.�Sir, let me show you what I've marked as11� �Plaintiff's Exhibit 156.�You're not copied on12� �this letter.�I'm just -- my first question is13� �whether you're familiar with this format of14� �review and communications regarding a final FTE15� �review.16� � � �A.�Let me read it over.17� � � �Q.�Sure.18� � � �A.�Again, your question was whether this19� �looks familiar to me?20� � � �Q.�Are you familiar with this form?21� � � �A.�It looks to be similar to the -- the22� �forms that I used in terms of the letter23� �content.24� � � �Q.�Okay.�Similar in the sense of this is
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�1� �the form of document you would have used in July�2� �of 2016 to prepare the ECOT final FTE review�3� �letter?�4� � � �A.�Right.�5� � � �Q.�Is the doc -- is the type of language --�6� �for example, look at the heading where it says,�7� �"Issues reported to ODE."�8� � � �A.�Uh-huh.�9� � � �Q.�Is that a format that you used in the10� �letter you drafted back in July?11� � � �A.�Well, I should have used the same12� �language that I would have used -- I didn't put13� �a title on it, but I said, "The following issues14� �will be documented."15� � � �Q.�What are you referring to, sir?16� � � �A.�On -- on Exhibit 67, on my initial17� �review letter dated April 20th.�I didn't put18� �the -- the heading in there, "Issues reported to19� �ODE," but stated, "The following issues will be20� �documented and reported to ODE."�That's what21� �I'm referring to.�I didn't bold and underline22� �that statement.23� � � �Q.�Your letter that is marked as part of24� �Plaintiff's Exhibit 67 has -- the first
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�1� �paragraph at the top of the second page of your�2� �letter has, "Recommendations are as follows."�3� � � � � �Do you have that type of language in the�4� �letter drafted in July?�5� � � �A.�Recommendations.�I'm not -- I'm not�6� �understanding where you're referring to�7� �recommendations.�8� � � �Q.�Sure.�Plaintiff's Exhibit 67 --�9� � � �A.�Okay.10� � � �Q.�-- your letter that was dated April11� �20th --12� � � �A.�Yes.13� � � �Q.�-- but sent out on May 17th, second page14� �of your letter at the top says, "Recommendations15� �are as follows."16� � � �A.�Oh, yes.�Yes.17� � � �Q.�Is that language found in your letter18� �that you prepared in July reflecting the FTE19� �review results?20� � � �A.�I think so.21� � � �Q.�You made a reference to issues being22� �reported to ODE.�I didn't see that language in23� �your letter of April 20, 2016.�Is that --24� �forgive me if I'm missing that.
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�1� � � �A.�The fourth paragraph.�2� � � �Q.�Okay.�So it says, "The following issues�3� �will be documented and reported to ODE."�4� � � �A.�Right.�5� � � �Q.�Okay.�I see where you're at now.�So�6� �you believe that in the letter you drafted in�7� �July of 2016, there's language that says�8� �something to the effect, the following issues�9� �will be documented and reported to ODE; is that10� �right?11� � � �A.�Yes.12� � � �Q.�And you also think that letter contains13� �a recommendation section?14� � � �A.�I believe so.15� � � �Q.�Okay.�Now, as -- as part of your area16� �coordinator -- coordination -- or coordinator17� �meetings, have you been made aware of, for18� �example, the -- the FTE results of Buckeye19� �Online School for Success?20� � � �A.�No.21� � � �Q.�Would you have been made aware of the22� �FTE review results from Virtual Community23� �School?24� � � �A.�No.�Now, when you say made aware of, do
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�1� �you mean that we passed these out and talked�2� �about them, or --�3� � � �Q.�No.�4� � � �A.�What are you referencing?�5� � � �Q.�Whether you were advised during the�6� �course of the -- these meetings about the�7� �results of the FTE reviews from the other�8� �eSchools?�9� � � �A.�No.10� � � �Q.�And I don't want to limit myself, so11� �would you have been advised from any source as12� �to the FTE review process for Buckeye Online13� �School for Success?14� � � �A.�Well, the -- the schools or the reviews15� �are now on an O drive.16� � � �Q.�Yes.17� � � �A.�And if they're completed, they're marked18� �as completed now and you can go on and see most19� �of them.�They're not all on there, but I've20� �seen a number of them on the O drive.21� � � �Q.�Do you make it a point of looking at the22� �final FTE reviews for the other eSchools?23� � � �A.�No.24� � � �Q.�You're aware that they've been posted on
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
�John WilhelmAugust 29, 2016
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
�YVer1f
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�1� �the O drive, however?�2� � � �A.�Some of them have.�3� � � �Q.�Okay.�Separate and apart from�4� �understanding that the FTE review results have�5� �been posted on the O drive, are you otherwise�6� �aware of -- or made aware of the results of the�7� �FTE review of the other eSchools?�8� � � �A.�No.�9� � � �Q.�And so there's been no discussion at any10� �of the area coordination meetings as to the11� �success or lack of success of the 2016 FTE12� �reviews?13� � � �A.�No.14� � � �Q.�When's the last time there was such a15� �meeting?16� � � �A.�Over a month ago.17� � � �Q.�Sometime in July after the ECOT review18� �was conducted?19� � � �A.�I can't tell you for sure.�I may have20� �missed one of them because of my vacation21� �schedule.�I think there was one in July.22� � � �Q.�Do you recall whether you attended the23� �one in July?24� � � �A.�No, I don't.
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�1� � � �Q.�And is it your testimony that the area�2� �coordinators have not been advised by ODE as to�3� �how ODE intends to take the information it's�4� �been provided as part of this FTE reviews and�5� �process it?�6� � � �A.�Yes.�7� � � �Q.�Have any of the area coordinators,�8� �during the course of these meetings, expressed�9� �any disagreement or frustration with the10� �approach being employed by ODE relating to the11� �2016 FTE reviews?12� � � �A.�I would say yes.13� � � �Q.�And in what way has that been14� �communicated, in what -- in what respect?15� � � �A.�I'm just thinking conversations or16� �comments that coordinators would have saying17� �that that's not the way they had done it before18� �or this is -- you know, this is hard to do or19� �things of that nature.20� � � �Q.�So you --21� � � �A.�I can't pinpoint a particular22� �coordinator that -- that I would say -- and what23� �they said exactly.24� � � �Q.�What you -- your recollection from the
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�1� �comments is that they include that area�2� �coordinators have expressed frustration with ODE�3� �because the standards being applied for the 2016�4� �FTE review are different than what had�5� �historically been applied?�6� � � �A.�There's frustrations with -- with the�7� �process and making sure that they're doing it�8� �correctly.�9� � � �Q.�Did that expression of the frustrations10� �include the fact that there's a new set of11� �standards being applied versus what had been12� �historically applied?13� � � �A.�I'm sure that would be part of it.14� � � � � �MR. LITTLE:�Why don't we take a break.15� �I need to go consult with my colleague for a16� �second --17� � � � � �MR. COLE:�Okay.18� � � � � �MR. LITTLE:�-- about whether certain19� �documents were produced.20� � � � � �THE VIDEOGRAPHER:�Off the record.21� � � � � �(Recess.)22� � � � � �THE VIDEOGRAPHER:�Back on the record.23� �BY MR. LITTLE:24� � � �Q.�Sir, the O drive that you placed certain
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�1� �documents on, who at ODE has access to that?�2� � � �A.�I don't know.�3� � � �Q.�Is it labeled a particular way where�4� �you've placed these documents, such as the ECOT�5� �FTE review?�6� � � �A.�No.�It's FTE -- the O drive is just a O�7� �drive for FTE reviews.�8� � � �Q.�Okay.�Are there subfiles in that O�9� �drive?10� � � �A.�Yes.11� � � �Q.�And the ECOT report and the other12� �documents you prepared based upon the July FTE13� �review would have been placed in which14� �electronic file?15� � � �A.�The ECOT subfile in the O drive.16� � � �Q.�So does each of the community schools17� �have their own electronic subfile?18� � � �A.�As far as I know.19� � � �Q.�Okay.�I mean, for example, is there20� �one, to your knowledge, for Findlay Digital?21� � � �A.�Yes, there should be.22� � � �Q.�And one for Ohio Virtual Academy?23� � � �A.�Yes.24� � � �Q.�Okay.
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
�John WilhelmAugust 29, 2016
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
�YVer1f
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�1� � � �A.�Well, not Ohio Virtual.�We haven't done�2� �one for them --�3� � � �Q.�Okay.�4� � � �A.�-- recently.�This -- this is a pretty�5� �recent thing.�6� � � �Q.�Okay.�So the prior FTE review conducted�7� �for Ohio Virtual Academy in 2012 would not�8� �necessarily be on the O drive?�9� � � �A.�No.10� � � �Q.�The updating or loading of documents on11� �the O drive is of fairly recent vintage?12� � � �A.�Yes.13� � � �Q.�The Findlay Digital final FTE review was14� �conducted when, please?15� � � �A.�I would have done that one in July16� �sometime.�I can't tell you the date.17� � � �Q.�Was that before or after the final ECOT18� �FTE review?19� � � �A.�It would have been after, I believe.20� � � �Q.�And would you have followed a similar21� �approach that after the completion of the22� �Findlay Digital FTE review, you would have23� �prepared the checklist report form and final FTE24� �review letter?
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�1� � � �A.�Yes.�2� � � �Q.�And were those all completed within ten�3� �days of the completion of the Findlay Digital�4� �2016 FTE review?�5� � � �A.�I would think.�6� � � �Q.�When you conducted the 2016 July FTE�7� �review for ECOT, was Marty Carlisle present from�8� �the auditor's office?�9� � � �A.�There -- I don't think there was an10� �auditor present the day I was there.�That might11� �have been the last day.12� � � � � �MR. LITTLE:�Okay.�Well, subject to13� �seeing the rest of the documents, that's all I14� �have for you now.�Thank you.15� � � � � �THE WITNESS:�Okay.�Thank you.16� � � � � �MR. LITTLE:�Thank you for your time.17� � � � � �THE WITNESS:�Thanks for the water.18� � � � � � � �(Signature not waived.)19� � � � � � � � � � � � -=O=-20� � � � � � �Thereupon, the testimony of August 29,21� �2016, was concluded at 4:34 p.m.22� � � � � � � � � � � � -=O=-2324
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�1� � � � � � � � � � �CERTIFICATE�2� �STATE OF OHIO� � � :� � � � � � � � � � � � � �SS:�3� �COUNTY OF FRANKLIN :�4� � � � � � �I, Rhonda Lawrence, a Notary Public in� � �and for the State of Ohio, duly commissioned and�5� �qualified, do hereby certify that the� � �within-named JOHN WILHELM was first duly sworn�6� �to testify to the truth, the whole truth, and� � �nothing but the truth in the cause aforesaid;�7� �that the testimony then given was reduced to� � �stenotypy in the presence of said witness,�8� �afterwards transcribed; that the foregoing is a� � �true and correct transcript of the testimony;�9� �that this deposition was taken at the time and� � �place in the foregoing caption specified.10� � � � � � � �I do further certify that I am not a11� �relative, employee or attorney of any of the� � �parties hereto; that I am not a relative or12� �employee of any attorney or counsel employed by� � �the parties hereto; that I am not financially13� �interested in the action; and further, I am not,� � �nor is the court reporting firm with which I am14� �affiliated, under contract as defined in Civil� � �Rule 28(D).15� � � � � � � �In witness whereof, I have hereunto16� �set my hand and affixed my seal of office at� � �Columbus, Ohio, on this 30th day of August,17� �2016.1819202122� � � � � � � � � � �Rhonda Lawrence23� � � � � � � � � �Notary Public, State of Ohio.24� �My commission expires:�October 8, 2018
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
�John WilhelmAugust 29, 2016
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675
�
�John Wilhelm
PRI Court Reporting, LLC� � � www.priohio.com614.460.5000 or 800.229.0675