Director of Education bill passes Senate, opponents doubt constitutionality

By Gregory Nickerson

January 16, 2013

The Wyoming Senate has passed a bill to transfer duties of the Superintendent of Public Instruction to an appointed director.

Senate File 104 passed the third reading in the Senate with a 20-10 vote after three days of debate. If the legislation passes another three readings in the House, it will go to the governor’s desk to be signed into law.

As the bill moves to the lower chamber, so will opponents who doubt the constitutionality of the bill.

“If you want to do this, do it with an amendment process, not by ramrodding it down our throats,” said Bob Berry with the Big Horn Basin Tea Party.

Berry had concerns that stripping Superintendent Hill’s duties midterm would void the will of the voters.

“If the people are dissatisfied with the Superintendent of Public Instruction, they will replace her,” Berry said.

Last summer Berry unsuccessfully ran against Sen. Hank Coe (R-Cody) in the race for District 18 in Park County.

Coe is Chairman of the Senate Education Committee, and co-sponsor of Senate File 104. He accused State Superintendent of Instruction Cindy Hill of supporting Berry’s campaign.

Berry said his home county has a stake in SF 104 because 80 percent of Park County voted for Cindy Hill. The Secretary of State’s vote count showed 70.7 percent of Park County voters cast their ballots for Hill.

“There’s going to be a big noise about this all over the state,” Berry said. “This will flavor this (session of the) legislature, no matter what else they do.”

Citizens from Converse County, Platte County, and Goshen County also showed up in the Capitol lobby today to voice their opposition to Senate File 104.

“There’s a better way to go about this,” said Kerry Powers, a rancher from Platte County. “If the Superintendent has committed impeachable offenses, then impeach. Let the voters decide this.”

Coe and other lawmakers have criticized Hill for repurposing state funds to programs not authorized by the legislature.

“They are going about addressing their perceived issues with the Wyoming Department of Education and the Superintendent in the wrong way,” Powers said. “The direction they are taking is not the will of the people. It’s the will of a handful.”

Despite Sen. Coe’s efforts to shape the debate about SF 104 as an education governance issue, the public continues to view Coe’s clashes with Superintendent Hill as a motivation for the bill.

“Our concern is not what they are doing with the vendetta, its what they are doing constitutionally with the department,” Powers said. “If the approach isn’t unconstitutional, then it’s borderline.”

Powers is concerned that the appointed director of education position would add another tier of government bureaucracy that insulates officials from voters.

As a compromise, Powers would favor an elected state board of education selecting the education director, rather than the governor. Currently the governor appoints the board of education.

Sen. Coe has said in floor debates that Senate File 104 is constitutional, citing the “Washakie Decision” of 1980.

The decision, Washakie County School Dist. No. One v. Herschler, was the first in a series of lawsuits over Wyoming’s school finance model. In the decision, the Wyoming Supreme Court ruled the state’s funding system to be unconstitutional.

Sen. Coe and others are pinning the legality of SF 104 on part of the decision that states there is, “no doubt that the legislature has complete control of the state’s school system in every respect.”

The Wyoming’s Constitution states that the duties and powers of the Superintendent of Public Instruction are prescribed by law.

The relevant portion of the Washakie decision is quoted here:

[¶20.]  What is Wyoming’s constitutional design of educational responsibility? “The legislature shall provide for the establishment and maintenance of a complete and uniform system of public instruction, embracing free elementary schools of every needed kind and grade, * * *.” (Emphasis added.) Section 1, Art. VII, Wyoming Constitution. “The general supervision of the public schools shall be entrusted to the state superintendent of public instruction, whose powers and duties shall be prescribed by law.” Section 14, Art. VII, Wyoming Constitution. These and other constitutional expressions should leave no doubt that the legislature has complete control of the state’s school system in every respect, including division of the state into school districts and providing for their financing. The legislature’s powers are subject only to restrictions on discrimination on account of sex, race or color, § 10, Art. VII; prescribing textbooks, § 11, Art. VII; and, sectarianism, § 12, Art. VII. The matter of providing a school system as a whole and financing it is a responsibility of the legislature.

Gregory Nickerson is the government and policy reporter for WyoFile. He writes the Capitol Beat blog. Contact him at greg@wyofile.com.

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