On June 13, 2014 the Accrediting Commission for Community and Junior Colleges (ACCJC) released the “decision” of its own handpicked Appeals Panel on the appeal filed by City College of San Francisco (CCSF) on March 4, 2014.

CCSF’s appeal argued that it should not be disaccredited, but the decision of ACCJC’s Appeal Panel rejected that argument, while at the same time offering the College further “review” of evidence provided to the Appeals Panel.

The lack of clarity in the decision announcement by the panel, and ACCJC’s own pronouncements about it, confused many observers, including reporters and elected officials who interpreted the decision as meaning CCSF had been granted a reprieve from the ACCJC’s closure order. This interpretation, reasonable on its face, is in fact wrong. It is the purpose of this document to demonstrate that.

As provided for in ACCJC’s bylaws, the Appeals panel, and its chair, was appointed by the ACCJC’s “Executive Committee.” This three-person Committee includes Chair Sherrill Amador, and Vice Chair Steven Kinsella — both strident defenders of ACCJC’s actions towards City College. Kinsella is directly charged in the CFT’s complaint to the Department of Education, and in Superior Court, with making improper demands on colleges for which he has a conflict of interest, owing to his involvement with a trust designed to collect contributions from colleges, which he evaluates or judges as an ACCJC team chair and commissioner.

The identity of the five panel members was a closely guarded secret. ACCJC refused to identify the panel members whom its Executive Committee had appointed, thus preventing the public, and interested students and faculty, from identifying conflicts of interest. ACCJC also forbade City College from releasing their names on threat of having its appeal summarily rejected.

With the issuance of its panel’s appeals decision, the identities of the five panelists are now known. No wonder ACCJC wanted to keep their identity a secret. At least three of the panelists, have conflicts of interest, which should have disqualified them from deciding City College’s appeal.

CCSF administration itself moved to disqualify two of the panelists prior to the hearing, but its motion was denied. ACCJC has unclear and seemingly contradictory policies regarding challenges to the composition of the Hearing Panel. Under ACCJC’s Appeals Manual, such challenges are decided by the panel’s lawyer and then remanded to the commission president to select a replacement. (See Section 2.E.) But under the Bylaws, challenges are decided by all members of the panel, each with one vote. (See Bylaws, Article IX, Section 2) This means McGinnis could have voted on his own conflict of interest. The decision says the motion was denied, but offers no indication as to who made that decision.

It is noteworthy that on August 13, 2013, the U.S. Department of Education (USDOE) ruled that ACCJC was out of compliance with numerous federal regulations for having ineffective controls against conflicts of interest and ambiguous policies. Then in January 2014 it extended ACCJC’s recognition by the DOE for a year, not the usual 5 years. The USDOE put ACCJC on probation, requiring it to prove it meets the criteria for Federal recognition. The evidence of this had arisen from the complaint filed by the CFT against ACCJC, a complaint, which focused on ACCJC’s mistreatment of CCSF.

This was primarily because it had appointed Barbara Beno’s husband, Peter Crabtree, to the 2012 CCSF team, and appointed Commission staffer John Nixon (one of Beno’s vice presidents) to the 2013 team.

This history of conflicts, and ACCJC’s probationary status, is what makes it even more appalling that the panelists appointed to judge CCSF — appointed by a triumvirate at the top of ACCJC – had actual or apparent conflicts of interest. These conflicts confirm that ACCJC still lacks controls to prevent conflicts of interest, and make invalid ACCJC’s assembly of the hearing panel and the Panel’s subsequent determinations against CCSF.

• ACCJC should rescind its disaccreditation of City College, because its efforts to support a wrongful disaccreditation continue to violate accreditation norms already identified by the USDOE.

ACCJC’s Appeals Panel members had conflicts

As is evident, at least three members of the panel, including its chair, had actual or apparent conflicts of interest, which call into question their impartiality.

Bill McGinnis

Panel Chair, William “Bill” McGinnis is responsible for “writing” the Hearing Panel’s decision. He is a trustee with the Butte Community College District, and has professional relationships with ACCJC, which create conflicts of interest. McGinnis is a frequent co-presenter with Barbara Beno at workshops for colleges, speaking on accreditation and related topics such as the role of trustees and college boards. Having President Beno’s “presentation” colleague as the chair of the hearing panel gives ACCJC a decided advantage in any appeal.

After CCSF was placed on “Show Cause” on July 3, 2012, Beno and McGinnis visited CCSF on July 10, 2012, and gave a presentation at a special school board public meeting, on the “Role of Board of Trustees in Accreditation.” Having advised City College on how trustees should behave — which was an issue that ACCJC had found that CCSF came up short on, and resulted in a deficiency — one questions how ACCJC could then appoint McGinnis to serve as chair of the Appeal’s panel. Their jovial presentation is striking to watch, as it is completely disconnected from the shocking Show Cause order that ACCJC had issued the week before. You can view here. 

• Note: On February 7, 2014, a month before CCSF appealed the disaccreditation order, Beno and McGinnis again appeared together, giving a presentation on “emerging topics in accreditation,” at the CCLC-ACCJC- ASCCC “Accreditation Institute” that met in La Jolla.

Among their other joint presentations are: In June 2011, Beno and McGinnis jointly gave advice on governance at a study session of the San Jose-Evergreen Community College’s board. (See City College of San Jose, Accreditation Follow-up Report, Oct. 15, 2011, p. 26) And they gave a similar presentation at Napa Valley College at a March 1, 2012 special meeting.

McGinnis has been advising colleges around the state about accreditation-related issues, mainly the role of trustees. Beno has recommended him as a consultant. After College of the Redwoods was placed on a Show Cause sanction in January 2012, at a board meeting on March 4, 2012, Redwoods President Goswami reported that “on a conference call with Dr. Barbara Beno, Dr. Beno suggested several consultants for Recommendation 8.” [Recommendation 8 referred to actions of the Board of Trustees] The Redwoods Board’s minutes continue,

“Trustee Truett stated that Dr. Barbara Beno reported that the Department of Education recommends serious action be taken if a college is on a sanction for more than two years. Trustee Truett reported that Dr. Barbara Beno recommended a consultant by the name of McGinnis.”

In the available video of the meeting, a colleague and Trustee Truett say, “Bill McGinnis.”

On June 13-14, 2012, the Redwoods Board of Trustees held a special two-day workshop to get “better educated on meeting Recommendation 8. Workshop leaders. The sessions were led by Bill McGinnis and Cindra Smith…” The Redwoods meeting agenda for August 7, 2012, shows that McGinnis and Smith were each paid $2,000 for a “personal services contract” for this presentation, via an invoice dated June 21, 2012.

The above-referenced documents show that ACCJC (via President Beno) recommended McGinnis to provide consulting services to Redwoods for their accreditation problems resulting from the ACCJC Show Cause action, and two years later ACCJC appointed McGinnis to serve as the chair for the City College appeal, to judge ACCJC’s actions.

Redwoods continues to contract with McGinnis and on May 29, 2014, just a week after CCSF’s appeal hearing, he conducted another special meeting training session for the Redwoods’ trustees.

McGinnis has publicly supported ACCJC during its recent problems. After the CFT filed a complaint with the USDOE on April 30, 2013, and a Third Party Comment on September 6, 2013, on October 8, 2013, Beno wrote to the Association of Chief Business Officers, soliciting “Letters to Support ACCJC’s recognition by the U.S. Department of Education.” McGinnis signed a letter to ACCJC dated October 14, 2013, indicating support for ACCJC’s standards, policies and practices. And just a few months later, ACCJC appointed McGinnis to chair the CCSF Appeals Hearing Panel.

• ACCJC has the right to suggest consultants to assist colleges in meeting accreditation requirements. However, appointing an ACCJC-recommended consultant who is paid for his/her consultant work, to then judge ACCJC, involves an actual or apparent conflict of interest.

Joseph Richey

Richey served as a Public Representative member of the Appeals Hearing Panel. He was appointed to the commission in 1998 and served as commission chair during 2005 and 2006. His last term ended in 2007. Mr. Richey served when CCSF was reaffirmed in 2006. The 2006 review of City College was an issue in dispute in the college’s appeal, and is still in dispute. Hence he was called upon to review commission actions that occurred while he was a commissioner.

Mr. Richey wrote a letter to Peralta Federation President Michael Mills, dated May 22, 2006, on behalf of the ACCJC, threatening him with a defamation lawsuit if he didn’t retract comments he reportedly made about the ACCJC — that they had a vendetta against the Peralta District and that they enforced rules that were not standards. This letter was exhibit 1.A. in CFT’s April 30, 2013 complaint.

Margaret Tillery

Margaret Tillery was a member of the commission from 2004 to 2007, and when the ACCJC accepted the evaluation team report finding CCSF satisfied accreditation requirements and standards in 2006 and accepting the college’s report about its addressing of ACCJC recommendations in 2007. The outcome of the 2006 review was and remains an issue in dispute. Hence Ms. Tillery was also called upon to review actions that the commission took while she was a commissioner.

Conclusion

Mr. McGinnis has a personal and financial interest in the outcome of CCSF’s appeal, because he has been recommended for paid consultancy work by ACCJC President Beno, and because he himself had given advice to City College after it was placed on Show Cause. Moreover, he has a personal and professional interest because he is invited to participate with Dr. Beno in public presentations about accreditation and the role of trustees. His involvement surely amounts to at least the appearance of a conflict and because of his interests, the probability of actual bias in favor of ACCJC’s actions is intolerably high.

As for Tillery and Richey, both were commission members when it decided CCSF’s accreditation in 2006, and whether ACCJC had clearly delineated deficiencies, as opposed to recommendations, is still an issue. “No man can be a judge in his own case.” The Department of Education held in August 2013 that ACCJC had violated federal law because of how it is now accusing CCSF of being deficient in 2006. No one can hear a case where s/he has an interest in the outcome, and what the commission did in 2006 is as relevant, if not more relevant, today.

All three of these individuals have actual or apparent conflicts. This is why ACCJC is not a reliable accreditor.

The Hearing Panel’s conclusions vs. the facts

The panel’s decision upholds actions that are unlawful and unfair, actions the United States Department of Education (USDOE) already concluded violate its standards.
In every section of its decision, the Appeals Panel misstates the facts and law, and excuses ACCJC’s misconduct. 

The decision of the Appeal Panel, to the extent it affirms ACCJC’s finding of deficiencies and issuance of a sanction to City College, should be abrogated.

The following pages note some of these misstatements and provide the real facts. The headings include the essence of the Panel’s finding, followed by information as to the true facts.

1. Lack of Prior Notice to CCSF of Non-Compliance with Accreditation Standards Prior to Imposition of “Show Cause” Status in 2012 — How ACCJC Lied and Now Tries to Cover Up its Retroactive Re-characterization of CCSF’s 2006 Accreditation

The decision concludes: “The Hearing Panel determined that “evidence did not support a conclusion that CCSF was confused or misled” in 2006 about its compliance obligations…and certainly not because the concerns identified by the Commission in 2006 were described as ‘recommendations’ as opposed to ‘deficiencies.’” (Hearing Panel decision at p. 6)

False. According to ACCJC’s own publications and policies there are significant differences between deficiencies and recommendations.

ACCJC has not told the truth about CCSF’s reaccreditation in 2006. And its hand picked appeals panel is covering up ACCJC’s retroactive recharacterization of CCSF as having been “deficient” in 2006 and after. When accredited in 2006, ACCJC, in its own words: “reaffirmed the excellence of the college…” finding it substantially met or exceeded accreditation standards, and was one of California’s “premier” community colleges.

Six years after reaccrediting City College, ACCJC mischaracterized CCSF’s status back in 2006, and then rested its decision to impose egregious penalties – Show Cause and Disaccreditation – and just 9.5 months to meet standards, on this lie. And its handpicked panel repeats this big lie.

Deficiencies are characterized by ACCJC as a failure to substantially comply with a Standard or Requirement. This is an undeniable fact, directly derived from ACCJC’s written policies. (ACCJC Policy on Commission Actions, 2012 ed., p. 39)

In contrast, ecommendations made when deficiencies have not been found are suggestions for quality improvement, and do not reflect an institution’s failure to comply with any standards. (“Rights and Responsibilities of ACCJC and Member Institutions in the Accrediting Process,” 2011 ed., Handbook, p.103.) The same distinction appears in the 2005 Handbook, 2006 Handbook, 2012 Handbook, and the rest in between and since.

• The big thing here is that ACCJC staff has been telling the public that City College was found deficient in 2006, that as of 2013 it had been out of compliance for over 7 years, and that therefore under federal law, ACCJC could not give it any more time to meet the standards.

In fact, in 2010 the Department of Education confirmed that ACCJC could offer extensions beyond two years for good cause, and ACCJC has had in place for years a “good cause” for extension policy though it is currently unpublished in any of their handbooks. It has extended many colleges multiple years to meet the standards - but not City College.

The ACCJC “Rights” Policy explains this distinction between deficiencies and recommendations:

“The Commission also has the responsibility to communicate its findings derived from the site visit to the institution; ensure that the external Evaluation Report of Educational Quality and Institutional Effectiveness (formerly Team Report) identifies and distinguishes clearly between statements directly related to meeting the Accreditation Standards and those representing suggestions for quality improvement.”(2011 Policy, Handbook p. 103.)

In 2013 CCSF Chancellor Day testified that the College understood in 2006 that it was fully accredited, without any deficiencies, based on the June 2006 letter of affirmation signed by Barbara Beno and the Team’s report:

“I read both the letter and the Report in 2006, after I received them. When I read Dr. Beno’s letter, and the 2006 Evaluation Report, I understood that ACCJC did not find that the College had any deficiencies. I did understand that ACCJC had included several suggestions to improve the quality of CCSF, which we subsequently considered.” (Day Declaration, Nov. 8, 2013, ¶8)

In its decision the Panel said the ACCJC asserted that there was “no requirement that the Commission offer … even a notice of deficiencies before an institution was placed on show cause status.”

In fact, the law declares in plain, simple language that an accreditor cannot place a college on sanction unless it first provides clear, specific written notice of deficiencies:

34 CFR §602.18(e) – Clearly Identifies deficiencies found in the review

34 CFR §602.25© – Provides written specifications of any deficiencies
34 CFR §602.17(f) – detailed written report that assesses deficiencies

If the commission had perceived any deficiencies at City College in 2006, the law cited above required it to clearly say so. The law is no different today. The USDOE’s guidelines emphasize that the ACCJC’s evaluation reports should be “comprehensive in clearly indicating any/all areas of non-compliance with each of the agency’s standards when the institution or program does not meet the agency’s expectations.” (2012 USDOE Guidelines for Recognition, p. 47)

In its August 13, 2013 ruling, the USDOE found that ACCJC had not properly differentiated between deficiencies and recommendations in 2006, because it was now mischaracterizing its 2006 recommendations as deficiencies.

The DOE decision illustrates the ACCJC’s obfuscation, noting that ACCJC’s “own review of the CFT complaint, the [ACCJC] states “It is accurate that the 2006 report found that the institution met sufficient numbers of standards to have its accreditation reaffirmed,” and that ACCJC’s summary to USDOE of its actions “reflects the difficulty to ascertain what a recommendation represents — an area of noncompliance or an area of improvement.” (USDOE letter, 8/12/13, pp. 3-4)

Having undeniably failed to clearly identify deficiencies in 2006 and in the years thereafter — because they did not exist — the ACCJC, and its handpicked Hearing Panel, ignore these damning facts and pretend that because the college was required to submit reports, that this somehow proves it “clearly” identified deficiencies. The Hearing Panel cites the series of reports that CCSF was required to file and did file between 2007 and 2010 as “proof” that CCSF had deficiencies. They are wrong.

ACCJC’s three letters following the commission’s 2006 reaffirmation of accreditation clearly indicate that the noted issues were in fact always designated as “recommendations.” (See ACCJC letters to CCSF in 2007, 2009, and 2010.) The unambiguous language in these letters from ACCJC confirms that CCSF was not given notice of any deficiencies from 2006 to 2012.

These letters signed by Barbara Beno clearly state that CCSF “should address the team’s recommendation.” And in reality, CCSF addressed these recommendations. ACCJC’s letters disregarded most of the recommendations. If CCSF was failing, why did ACCJC accept CCSF’s reports and not then issue documents stating CCSF had deficiencies? ACCJC has no answer for its own failure, and just continues to lie, regardless of the contradictory facts.

2. Alleged abuse of discretion in imposing harsher sanctions in 2012 and 2013 than were recommended by the Visiting Team

Claim – The Hearing Panel noted: “CCSF conceded that the commission had discretion to modify recommendations [as to the level of sanction] it received from visiting teams…” and that there was no abuse of discretion on the part of the commission for its determinations in 2012 and 2013. (Decision, p. 8)

False. In March 2012, ACCJC’s handpicked 17-person evaluation team recommended CCSF be put on Probation. In June 2012 ACCJC rejected this, and placed it on Show Cause. It did so without notice or a hearing, violating California law. ACCJC also had no fair or reasonable justification for rejecting the team’s recommendation of Probation, and increasing the sanction to “Show Cause.”

In April 2013, ACCJC’s 9-person evaluation team (5 holdovers from the 2012 team) evaluated CCSF. It found 19 deficiencies, although the team acknowledged that 11 of these resulted from the college having been given only 9.5 months to correct problems, when a full three-year review cycle was necessary to implement and assess CCSF’s progress. The team complimented CCSF’s excellent response and progress in meeting the demands announced by ACCJC in 2012 by stating that “Overall, the Show Cause Visiting Team was impressed with the engagement and responsiveness of the entire college community to take corrective measures to meet the ACCJC Accreditation Standards and Eligibility Requirements in response to the Commission directives in its July [2, 2012] accreditation decision letter.” (Show Cause Evaluation Report, p. 9)

In June 2013, the ACCJC rejected nearly half of the team’s findings, though they were supported by more than 16 pages of evidence which were also rejected. ACCJC also increased the number of unmet standards from 19 to 30. Why did the ACCJC do this? It has never said. One would expect an unbiased appeals panel to acknowledge this; but not this handpicked appeals panel.

ACCJC had no legal right to increase the college’s “deficiencies” from 19 — the number of unmet standards identified by the team — to 30. Nor did it have a right to then decide to disaccredit City College.

ACCJC’s “Policy on Commission Good Practices in Relations with Member Institutions” under section 20.b., explicitly states that it had to postpone ruling on City College,

“If the Commission’s action lists any deficiency, which was not noted in the External Evaluation Report, before making any decision that includes a sanction, denying or terminating accreditation, or candidacy, the Commission, through its President, will afford the institution additional time to respond in writing to the perceived deficiency before finalizing its actions at the next Commission meeting.” (ACCJC Accreditation Handbook, 2012)

The Hearing Panel Decision simply ignores the obvious facts: that the order to terminate CCSF’s accreditation was impermissible given that the commission identified additional standards as being unmet, but did not provide CCSF with the required notification, or an opportunity to respond at the commission’s January 2014 meeting. Why did ACCJC rush to an illegal judgment? The Hearing Panel fails to mention this in its decision.

3. Alleged abuse of discretion in allowing CCSF less than one year to rectify deficiencies.

Decision: “Given the extent of noncompliance and the long history of delay and intransigence, it was reasonable to conclude those problems would continue into the future, which justified [that] the institutions accreditation should be terminated.” (Decision, p. 20)

False. The Hearing Panel repeats this fabricated history. ACCJC had no cause to disaccredit the college and plenty of reason – established practice and ACCJC policies – to give it more time. First, had City College really suffered from serious deficiencies (it did not) ACCJC should have given CCSF more than two years to achieve compliance, not the insufficient 9.5 months it gave it.

ACCJC own policy providing “good cause” for extension beyond two years” approved by the USDOE in 2011, has been repeatedly implemented, especially for colleges which have a “long history of delay and intransigence.” ACCJC’s Policy on Good Cause extensions lists four distinct grounds for an extension, and City College meets every one. The policy is actually unpublished by the ACCJC, but implemented often as a practice. Under the policy, ACCJC can extend time for two years, or four, or more, as it had done for numerous California community colleges. Each of the grounds apply and authorized ACCJC to give City College more time AND a new review:

1. When the institution must reasonably take more than two years to correct a deficiency, while demonstrating substantial progress. This is the case here, as ACCJC told City College it had to review a full, three-year cycle to be able to evaluate CCSF’s progress. Under the policy, ACCJC could have extended time for two years, or four, or more, as it had done for numerous California community colleges.
2. When an external agency is involved that requires sequential steps to take action, such as a State agency. That external agency is any or all of the following: the state Chancellor’s Office, Board of Governors, FCMAT, and Trustee Agrella. And it was Beno, according to Brice Harris, who made it clear to him starting May 20, 2013, that he needed to involve a state trustee with extraordinary powers, and take over the college, in order to get an extension. But then, Beno double crossed him and the college and did not offer the extension.
3. When consultants and others external to the institution are retained to assist in the resolution of the deficiency, such as a comprehensive fiscal recovery plan. That’s what FCMAT and Agrella are doing now, as Beno was aware would be happening according to Harris’ declaration.
4. (4) When an external agency is a participant in resolving the compliance issue, such as when state regulatory personnel are overseeing an activity. Again, that’s what FCMAT, the state Chancellor and Agrella are doing. Beno even said so in her email to Harris the night she announced disaccreditation — new leadership would allow the college to survive. ACCJC imposed a much harsher sanction of Show Cause on CCSF than it did on other institutions that were found to be out of compliance with the same or more deficiencies.

Additionally, other institutions were granted significantly more time via the “good cause” extension to come into compliance and correct deficiencies.

For example:

Sierra College’s January 31, 2008 action letter states, “Sierra College must correct the deficiencies noted by January 2010. While one of the recommendations identified as a deficiency was also identified by the 2001 evaluation team, the commission has extended Sierra College’s time to correct this deficiency for good cause.” That’s 7 years! The same verdict was reached in 2009. The February 3, 2009 action letter states that, “While Recommendation 2 was also noted by the year 2001 evaluation team, the commission has extended Sierra College’s time to correct these deficiencies for good cause.” That gave Sierra College roughly nine years to comply with accreditation standards.

Victor Valley College’s January 31, 2008 letter states the college “must correct the deficiencies noted by June 2009. While some of the recommendations listed below, identified as deficiencies, were also noted by the 2005 comprehensive evaluation team, the commission has extended Victor Valley College’s time to correct these deficiencies for good cause.” The July 3, 2012 letter references deficiencies that were “dated back to 1993…” and that the college “has been granted additional time.” Overall, Victor Valley received around 20 years to correct deficiencies dating all the way back to 1993 and around 8 years for the deficiencies noted in 2005.

Solano Community College, like the previous two examples also received extra time under the “good cause” extension to comply with accreditation standards. According to the January 31, 2008 letter, Solano had to “correct the deficiencies noted by January 2009. While the recommendations listed below were identified as deficiencies by the year 2005 comprehensive evaluation team, the commission has extended Solano Community College’s time to correct these deficiencies for good cause.” In the February 11, 2013 letter, Solano was told it must “complete the work needed by October 2013 or the commission will be compelled to act.” Finally, after granting the college around eight years to fix deficiencies, the ACCJC wrote that it would be compelled to act if the accreditation standards were not met. That means Solano was given four and five years!

Federal regulations require that accrediting agencies, such as the ACCJC, “consistently apply and enforce standards” and have “effective controls against the inconsistent application of the agency’s standards.” 34 C.F.R. §602.18(b). ACCJC has no justification for such disparate treatment – giving Sierra, Victor Valley and Solano up to 20 years for some unspecified “good cause,” and giving CCSF just 9.5 months.

The disparate treatment of CCSF deprived the college of a just review process and stripped them of a substantial amount of time to come into compliance with alleged deficiencies. The Hearing Panel’s decision, in rejecting the application of a claim of disparate treatment ignores 602.18(b). 

4. Alleged error with respect to determinations by the commission regarding CCSF’s failure to comply with certain financial standards.

According to the Decision, CCSF had not addressed and had apparently lacked the capacity to address many financial management deficiencies, had no realistic plan or likelihood of covering its ever increasing its prefunding for employee-earned retiree health benefits and this would likely continue in a “downward financial spiral” at a dramatic rate. It had allegedly experienced “long-standing financial problems and shortcomings,” and was out of compliance due to “entrenched resistance from third parties and organizations affiliated with CCSF that were more focused on protecting their economic or professional status, regardless of the risk to the continuing accreditation of the institution.” (Appeals Hearing Panel Decision, pp. 6-7, 10-12)

False. The decision scapegoats both CCSF and its faculty and labor organizations for the state budget crisis, and CCSF’s determination to maintain classes for all of its students. These assertions in the decision are unsupported by the facts, and constitute just another falsehood by the panel.

CCSF always had reserves that satisfy the California Community Colleges’ standards, with the sole exception of 2011-2012, when CCSF dipped into its reserves, because of substantial cuts in state funding. CCSF made up for this in 2012-2013, with large cuts in faculty salaries, additional funding from statewide and local propositions, and additional sales tax revenue. Because of this, CCSF “estimates that it will have a positive ending fund balance in 2013-2014 of $24,281,595, or 12.8 percent, significantly higher than the percentage that is recommended in the ‘reserves’.”

ACCJC claimed that unrestricted net assets were in deficit for the “third consecutive year” and that this ‘deficit continues to grow.’ In reality, and despite massive funding cuts, CCSF experienced a deficit in its unrestricted budget in only one year, 2011-12,” as did many other community college districts (Hanzo Declaration, p.2, ¶ 9).

ACCJC expressed concern that contractual post-employment medical benefits are a “threat to the financial stability of the College.” CCSF is dealing with this by contributing to the City of San Francisco’s Retiree Health Care Trust Fund.

Hanzo stated that “CCSF was able to weather the unprecedented reductions in State and local funding even while costs continued to climb, e.g., health care insurance premiums. The College found ways to reduce costs, including concession agreements with employee unions between 2009-10 through 2013-14, which saved millions of dollars through staffing cuts and attrition, and salary and benefit reductions” (Hanzo Declaration, p. 2,¶ 10).

The tremendous efforts by the College over just twelve months to reduce spending and raise revenues went unrecognized by the ACCJC in July, 2013, when it stripped CCSF of its accreditation, claiming that its fiscal deficiencies were largely ‘unaddressed as of 2013’.”

ACCJC claimed: Third parties were “more focused on protecting their economic or professional status, regardless of the risk to the continuing accreditation of the institution.”

Hardly. Undisputed testimony is that the faculty has endured round after round of voluntary, agreed-upon wage cuts, to help the college maintain its high quality education and open access:

1. Faculty has not had a salary increase since 2007-08, and after numerous cuts wages today are 4% below 2007 levels.
2. Since 2010-11 faculty have suffered wage cuts. They agreed to a 1% across-the board salary cut, helping the district save $1.57 million for fiscal year 2010-11.
3. Faculty agreed to another wage cut in March 2012, of 0.45% annualized, helping save $1.7 million.
4. In June 2012, faculty agreed to another cut, of 2.85%, plus other concessions, saving the district at least $8.4 million.
5. In January 2013, the district implemented a 4.4% annualized wage cut for FY 2012-13, on top of the previous 2.85% cut, totaling an annualized 7.25% cut for 2012-13.
6. On July 1, 2013, the district increased the 4.4% annualized cut to an ongoing 5% cut.

As a result of these freezes and cuts, faculty at CCSF are among the lowest paid in the Bay 10 group of community college districts.

5. Alleged abuse of discretion and violation of “traditional” principles regarding conflicts of interest regarding members of Accreditation Review Team (Crabtree) and “Show Cause” Review Team (Nixon)

Decision. The Hearing Panel did not find that there was an actual or apparent conflict of interest on the part of Mr. Crabtree or Dr. Nixon at the time they served on the two evaluation teams. The Hearing Panel concluded that, as to both Mr. Crabtree and Dr Nixon, CCSF’s claims of error with respect to their selection and participation are not supported by a preponderance of the evidence.

False again. ACCJC put Barbara Beno’s husband and commissioner Nixon on the two teams. Both are unquestionably serious conflicts of interest, both actual and apparent, which is why the Decision itself is the product of equally serious conflicts.
The ACCJC’s own Policy Handbooks consistently state that the Commission will not knowingly invite or assign participation in the evaluation of an institution anyone who has an actual or apparent conflict of interest.
Peter Crabtree’s Actual or Apparent Conflict

ACCJC policy was amended recently (following exposure of the Crabtree conflict) to include a prohibition from immediate family members of commission staff from participating on evaluation teams. But even without the specific rule, the conflict is apparent.

Putting Peter Crabtree on the team was like putting Barbara Beno on the team. And Beno’s persona rules the ACCJC. Even ACCJC staffer Tom Lane testified recently that Beno and the ACCJC are one and the same.

The Hearing Panel Decision found that because only the prior policy was in effect at the time of CCSF’s evaluation, no conflict existed with regards to Crabtree. This finding directly contradicts the USDOE’s finding that the ACCJC was out of compliance with the US DOE’s Secretary’s Criteria for Recognition (602.15(a)(6)), stating that there be clear and effective controls against conflicts of interest, but also against the appearance of conflicts of interest.

The USDOE went on to state that: “the participation of the spouse of the president of the ACCJC on an evaluation team has the appearance to the public of creating a conflict of interest.”

Further, Vice President Jack Pond, also has stated that ACCJC looks for any obvious conflicts among the potential team members, including if a potential evaluator is employed by a competing or “abutting” college or district — certainly the case here as Mr. Crabtree is a Dean at Laney College, a competing/abutting institution.

Though ACCJC maintains that CCSF’s application for Reaffirmation of Accreditation included a request for an individual with expertise in Career and Technical Education, thereby warranting the appointment of Crabtree, the fact is that there are over 100 other administrators of Career and Technical Education at various community colleges throughout the state which ACCJC could have approached instead.

It is evident that the ACCJC did not have adequate controls for conflicts of interest, and moreover, doesn’t faithfully apply its existing policies. Though the DOE maintained that the 2012 ACCJC policy was acceptable (without an explicit reference to prohibition of spouses), the DOE concluded that Crabtree’s participation on the team created an appearance of a conflict and was therefore improper.

The USDOE’s August 13, 2013 letter to the ACCJC and Barbara Beno addressing this issue was not merely — as this Panel “decided” — a “staff opinion” about whether a conflict existed given Crabtree’s participation, but was rather a conclusion that the assignment of Crabtree was a violation of the Secretary’s Criteria for Recognition, ACCJC’s own policies, and that ACCJC was out of compliance with a number of federal regulations (34 C.F.R. §§602.15(a)(3), 602.15(a)(6), 602.18(e), and 602.20(a)).

John Nixon

At the time of CCSF’s evaluation team visit in April 2013, John Nixon was a member of the commission staff. He was also one of the nine members of that team. The Hearing Panel writes that the USDOE “registered no concern about him.” (Hearing Panel Decision, p. 16) This is false.

The August 13, 2013 USDOE decision letter to President Beno informed her that the ACCJC was not in compliance with four federal regulations, including 34 CFR §602.15(a)(3). USDOE found that ACCJC did not have a specific policy dealing with the composition of on-site evaluation teams.

Additionally, ACCJC “does not state in any materials that agency staff could or would serve on an evaluation team; however an ACCJC staff member was listed as a member of the team for the April 2013 evaluation of CCSF.” (8/13/13 USDOE letter to Beno, p. 2) While Nixon was not named in the letter, he was the only ACCJC commission staff member serving on the CCSF 2013 Evaluation Team.

Note that the ACCJC, according to the USDOE Staff Report of December 2013, was still out of compliance with this regulation.

All of the above facts are readily known, the Hearing Panel had the August 2013 decision letter, and still it closed its eyes to the obvious conflict of interest.

When a decision-maker is biased or has a conflict of interest, it is usually impossible to show exactly how his bias affected his decision. Therefore, no further evidence of causation is needed. His or her decision must be set aside even without evidence that an unbiased decision-maker might have decided the case differently.

The presumption that bias caused an erroneous decision applies to any decision-maker – judge, juror, or panel. It should be applied to the ACCJC. This presumption applies with special force where a decision-maker exercises discretion. ACCJC admits that its determinations are discretionary. Selecting a sanction or affording time to remedy deficiencies is especially discretionary.

Even if ACCJC’s determinations regarding CCSF had been valid (they were not), ACCJC had a range of sanctions available: Warning, Probation, etc., but selected the harshest: the death penalty, Disaccreditation. It could have given the college multiple years, but did not.

The Superior Court, in granting an injunction against ACCJC, recognized that “the commission’s adverse action appears extreme” and that “such a swift move to show cause and such a short time window is uncommon.”

Common sense tells us that it is highly likely that an unbiased accreditor would have tried to work with CCSF instead of destroying it. After all, the complaints ACCJC presented in 2012 and 2013 were not about the college’s academic quality — they were about its processes. As has been recognized over and over, CCSF is responsible for educating — and educating well — many of San Francisco’s most essential workers – nurses, radiologists, fire fighters, aircraft mechanics, and many more.

6. Alleged inadequate number of academicians on the 2012 and 2013 Visiting Teams

Decision. “… the communication from USDOE in August 2013 is simply an after-the-fact expression of opinions of its staff with respect to what they believed to be desirable, not a statement of what was required by the applicable regulations.” (Decision, p. 17)

‘False. CFT’s April 30, 2013 complaint alleged that only 1 of 17 members of the 2012 team was a full-time teacher. And that only 1 of 9 on the 2013 team was a full-time teacher.
In its decision, issued August 13, 2013, USDOE identifies the ACCJC as being out of compliance with 34 CFR §602.15(a)(3) regarding academic and administrative personnel on evaluation teams. The Hearing Panel dismisses this as a mere opinion. It is a decision.

The Hearing Panel notes that, “As a practical matter, that interpretation from USDOE might well be enough to influence the Commission to modify its views with respect to appointment of evaluation teams from August, 2013, forward, but that communication does not establish the commission’s prior interpretation was wrong, inherently unreasonable, or in contravention of the regulations.” (Hearing Panel Decision, p. 17)

False again. The findings in the August 13, 2013 were clear in determining that ACCJC was out of compliance with the regulations and that, “in order to avoid initiation of an action to limit, suspend or terminate ACCJC’s recognition, ACCJC must take immediate steps to correct the areas of non-compliance identified in this letter.”

Further, the USDOE noted that, “One academician on an evaluation team comprised of eight and 16 individuals, as was the case for the April 2013 and March 2012 evaluation teams, respectively, of CCSF, is not reasonable representation. The agency must demonstrate that it ensures that both academic and administrative personnel are adequately represented on its evaluation teams.” (Emphasis added)

Additionally, the Hearing Panel notes that “it is worthwhile to first mention that the applicable federal regulations do not contain any definition of ‘academic’ personnel. . .” (p. 16) While true, in the December 2013 USDOE Staff Report, USDOE states that it “does expect that the agency’s definition be comparable with the generally accepted policies and practices within the accrediting agency and wider higher education community.” (USDOE Staff Report, December 2013) ACCJC knows that deans, vice presidents, and other high-level administrative personnel are not teachers — after all, Beno worked as a college president for a decade. Despite this knowledge, ACCJC failed to do this.

Noting their definition, USDOE found that “the use of the term academic for individuals whose primary responsibilities are administrative and who are not directly engaged in a significant manner in postsecondary teaching and/or research misrepresents the experience expected for an individual in this role.” (P. 15)

Conclusion

The decision of the Appeal Hearing Panel, to the extent it affirms ACCJC’s finding of deficiencies and issuance of a sanction to City College, should be abrogated based on the foregoing facts.

Given the deceitful nature of the Hearing Panel’s determinations and the irrefutable actual or apparent conflicts of interest that a majority of the Panel’s membership carries with them, it is evident that the ACCJC has not had, and continues to have no intention of giving CCSF a fair hearing or evaluation on its merits.

The panel’s decision upholds actions that are unlawful and unfair, actions the USDOE already concluded violate its standards. At the beginning of its decision, the panel “acknowledges” some “general principles” that apply to accreditors, implying these principles governed its decision. For instance, it says that courts generally defer to accrediting agency decisions. But the panel is not a court — it should not defer to the ACCJC because it is part of the ACCJC. 

The panel’s decision is a subterfuge, an attempt to immunize ACCJC from the consequences of its wrongdoing. In remanding the issue of recent compliance with standards back to the commission, the panel recreates in new clothing a situation in which CCSF will continue to faces the uncertainty of the inconsistent and unfair ACCJC’s processes.

The panel concludes that: “in pursuing this evaluation, the commission need not follow the express requirements or procedures which govern its routine evaluations…but may, within its sole discretion, develop a format and methodology for this task….”

What is needed is a new evaluation, one free from conflicts of interest and predeterminations of noncompliance.

ACCJC’s flagrant disregard for the regulations governing its mandate, its own policies, and legal principles of fair procedure evince an incompetency or improper motive. These warrant the USDOE ceasing to recognize the ACCJC as a reliable accrediting body.

Further, they require the rescission of CCSF’s Disaccredited and Show Cause status, a fair reevaluation of CCSF and then a justified reaffirmation of its accredited status.