Electronically Filed 5/22/2020 4:53 PM Idaho Supreme Court Karel Lehrman, Clerk of the Court By: Melanie Gagnepain, Deputy Clerk DAVID H. LEROY Attorney at Law and Special Deputy Idaho Attorney General 802 West Bannock Street, Ste 201 Boise, Idaho 83702 Telephone: (208) 342-0000 Facsimile: (208) 342-4200 Idaho State Bar No. 1359 [email protected] BEFORE THE SUPREME COURT OF THE STATE OF IDAHO IDAHO SUPERINTENDENT OF PUBLIC ) Docket No. 47991-2020 INSTRUCTION SHERRI YBARRA, in her ) official capacity, ) OF SHERRI ) DECLARATION Petitioner, ) YBARRA, IDAHO SUPERINTENDENT OF PUBLIC vs. ) 1N REPLY T0 ) INSTRUCTION, RESPONSES TO THE THE LEGISLATURE 0F THE STATE OF ) THE VERIFIED PETITION IDAHO, BY REPRESENTATIVE SCOTT BEDKE ) in his official and representative capacity as ) SPEAKER OF THE HOUSE OF ) REPRESENTATIVES AND SENATOR BRENT ) as HILL, in his official and representative capacity ) SENATE PRESIDENT PRO TEM and THE ) IDAHO STATE BOARD OF EDUCATION by ) DEBBIE CRITCHFIELD, in her official and ) representative capacity as PRESIDENT OF THE ) BOARD, ) ) Respondents. ) follows: I, Sherri Ybarra, declare and state as official capacity as the elected Idaho State 1. I am the Petitioner in this case in my all of the matters stated Superintendent of Public Instruction. I have personal knowledge of herein. DECLARATION OF SHERRI YBARRA, IDAHO SUPERINTENDENT OF PUBLIC - INSTRUCTION, IN REPLY TO THE RESPONSES TO THE VERIFIED PETITION 1 " 2. Attached hereto and incorporated herein as Exhibit “1 is a chronological description of various meetings, contacts and conversations which I had during the 2020 Legislative Session regarding Senate Bills 1409 and 1410. Upon that knowledge. together with like information communicated to me by my staff, I asserted upon infomation and belief in Paragraph 28 of the Verified Complaint the intent of certain individual legislators for passing said Bills. 3. Ireiterate and respond that the 21 employees Technology (Services) Group of the State Department of Education are the “nerve center” and control management point for all operations, communications, data storage and programs affecting and controlling public schools and education at the elementary and secondary level statewide. The detail contained in Exhibits “A”, “B”, “C” and “D” to the Verified Petition is Critical to this understanding: “A” A. Exhibit is an overview properly describing the team as a “support unit with a variety of roles intertwined with those of the rest of the divisions 0fthe SDE,” giving “assistance t0 SDB programs and staffas well as direct support to external stateholders including school district personnel and students.” It also describes in some detail the Broadband programs and Infrastructure Improvement Grant and emphasizes the Business Operations and essential work done within the Department. Finally, and appropriately last, it describes the Idaho System for Educational Excellence, the program at issue herein. B. Exhibit “B” is a set of diagrams illustrating that the structure of the Technology (Services) Group is fully integrated into the entire organization of the Department of Education, is one unit of approximately sixteen, but is the only DECLARATION OF SHERRI YBARRA, IDAHO SUPERINTENDENT 0F PUBLIC INSTRUCTION, IN REPLY T0 THE RESPONSES TO THE VEREIED PETITION - 2 computer center for all employees and operations. the duties of C. Exhibit “C” contains a position by position detailed description of I communicated each of the twenty one jobs in the Technology (Services) Group. April 2020 in an this document to the President of the Board of Education on 3, more than attempt to convince her and the Board that these employees were much mere data security persons working on ISEE. “D” confirmation that the D. Finally, Exhibit is a program by program outline and Technology (Services) Group interfaces, supports, interacts and manages other computer related details and data for myself and every one of the 117 employees in the Department of Education on a daily basis. The internal Public operations and sub-departments thusly interelated and illustrated include School Finance, Assessment and Accountability, Federal Programs, Special Education, Teacher Certification, Student Engagement, Content and Curriculum, School Choice and Student Transportation. To leave all of these operations and doors employees without daily, direct access to computer services is close to the of the Department. Obviously, the 3 computer employees proposed to remain with the Department can not assume all of the roles and duties now discharged by 21 persons. “ ” the comparatively 4. Attached hereto as Exhibit is a “Daisy Diagram” which shows “centralize operations” and limited scope of the ISEE program which is used as a justification to actual wide range of operations and eliminate my employees. This should be contrasted with the DECLARATION OF SHERRI YBARRA, IDAHO SUPERTNTENDENT OF PUBLIC INSTRUCTION, TN REPLY TO THE RESPONSES TO THE VERIFIED PETITION - 3 Department as described in Paragraph duties of the Technology (Services) Group within the full “A” “D” 3 and Exhibits through above. 0n January 6. Approximately six 5. The 2020 Session of the Idaho Legislature convened legislators might attempt to use the Joint Finance weeks later I began to hear rumors that a few Education Committees, to and Appropriations Committee, rather than either the House or Senate control. introduce a measure to remove the departmental IT division from my upon student data security to accord 6. Idaho Code Section 33-1 33 is primarily focused Bill 1372, which became the law with national cOncerns. The Statement of Purpose for Senate the State Board of Education in described both that narrow goal and a limited role envisioned for implementing it: “Protection of students information is a paramount duty of the State of balanced with the need Idaho and its local school districts. This must be legislation for information to inform education decision making. This provides definitions, sets forth the procedure for sharing information, sets reporting to forth the procedure for changing data collected, and requires 0f Education the legislature. It mandates that the Office 0f the State Board develop model policy for districts and requires districts to develop their own data security policy.” Had Idaho Code Section 33-133 been proposed for statutory amendment 0r clarification relevant and potential before a germaine committee, a public and open discussion of the policy have been properly problems outlined in paragraphs 3 and 4 above with an IT transfer could considered by the legislatm'e. presented to me and staff as an 7. Instead, in late February the demanded transfer was my was “Which three of your accomplished and final decision in which the only remaining question DECLARATION OF SHERRI YBARRA, IDAHO SUPERINTENDENT OF PUBLIC PETITION — 4 INSTRUCTION, IN REPLY TO THE RESPONSES TO THE VERIFIED staff and legislator personnel positions do you wish left behind?” I attempted to inform LSO any (Services) Group with the entire who would listen that the interconnectivity of the Technology such a division operation of the Department and other broad duties of the Grou made any unworkable and impossible. t0 assist the Department in its defense from 8. Representative Lance Clow, attempting General’s Office to issue a written the attack, on March 13, 2020 asked the Idaho Attorney the Superintendent and the opinion upon both the constitutional division of authority between issue. On March 16, 2020 Deputy Board and the effect 0f Idaho Code Section 33-133 upon the attached as Exhibit “3”. Upon the Attorney General Leslie Hayes responded with the opinion opines the answers are constitutional question the opinion suggests that until this Court states that the Idaho Code 33—133 is uncertain. However, at page 4 of the opinion, Deputy Hayes not to subvert a narrow focus law under which the Board’s duty is to set policy for data security, the Department in the control or management 0f computer systems. the Board’s own {PAPA 9. This longstanding division of labor is also confirmed by A. Joki, paragraphs 44- regulation on Data Collection as referenced in the Declaration of Russell as Exhibit “4”. 50. A copy of IDAPA 08.02.03,] 15 is attached hereto that “The Transfer of 18 10. The Declaration of Matt Freeman, paragraph 19 offers of the Board . employees from one executive agency of the Board to another executive agency Superintendent.” should not interfere with the work of the SDE or the recognizes neither the This statement confirms that the Executive Director of the Board Instruction nor the fact that the constitutional dimension of the elected Superintendent of Public DECLARATION 0F SHERRI YBARRA, IDAHO SUPERINTENDENT 0F PUBLIC PETITION - 5 INSTRUCTION, IN REPLY T0 THE RESPONSES TO THE VERIFIED “executive officer of such Superintendent, not he, pursuant to Idaho Code Section 33-125 is the depaflment.” that neither he nor Significantly, paragraph 21 of the Freeman Declaration also confirms of the Idaho Department of the Board yet understand that the Technology (Services) Group integrated and vital Education and Office of the Superintendent and their employees are a fully related to Idaho’s public schools and unit co-ordinating daily in all of the fimctions and duties “A” through “D” to the Verified Petition. pupils, as described in paragraph 3 above and Exhibits for use by'the . will be available The offer that “The same data currently collected in ISEE .” Freeman and the Board still proceed under the Superintendent . reveals that Mr.