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SEE YOU IN COURT! - April 2011

April 1, 2011

Authors: Thomas B. Mooney

In his twelve years on the Nutmeg Board of Education, Mr. Chairperson had never seen the mood this ugly. Seymour Dollars, the irascible Chair of the Nutmeg Board of Finance, had already announced several times that this year would be different – very different. Last month, he announced that all Town boards and commissions would be cut 10% in their funding from 2010-2011 levels. After talking with Mrs. Superintendent, Mr. Chairperson realized that such a cut would be devastating. Indeed, even flat funding would require deep cuts in personnel and programs, given the projected increases in contractual obligations, medical insurance and fuel costs.

Mr. Board Chairperson called Mal Content, the President of Nutmeg Union of Teachers, and implored him to reconsider the issue of salary concessions. Mal reminded Mr. Board Chairperson that concession talks had foundered on the issue of duration. NUTS would be happy to make concessions, Mal said, if only the Board of Education could agree to provide “fair” compensation for the three years thereafter, of step movement and a 2% GWI [general wage increase] each year. Mr. Board Chairperson told Mal that the Board will have to pass because a contract extension with such raises would never past Town review.

Without teacher salary concessions, Mr. Board Chairperson decided to focus on getting a larger appropriation. He and veteran Board members Bob Bombast and Penny Pincher put their heads together, and they came up with an ad campaign to get the public up in arms over Seymour Dollar’s budget reduction plan. They decided that flyers would go home with students every other day, telling parents how a budget cut would harm the educational opportunities for their children. They tried to be factual in these flyers, but they couldn’t resist putting on the flyers some unflattering pictures of the members of the Board of Finance, including one especially terrible picture of Seymour Dollars banging the gavel at a meeting.

When they saw the flyers, Seymour Dollars and the other Board of Finance members were livid. At the next meeting of the Board of Finance, Seymour revised his recommendation, and he moved that the appropriation to the Board of Education be reduced further to 15% below 2010-2011 levels. The Board of Finance promptly approved the motion, and Seymour Dollars called Mr. Board Chairperson on his cell phone then and there to give him the news personally.

Mr. Board Chairperson called an emergency meeting of the Nutmeg Board of Education for the very next night. What should be on the agenda?

*        *        *

As a threshold matter, it is questionable whether an emergency meeting is appropriate. Clearly, the situation is urgent, but a special meeting can be called without posting at least twenty-four hours in advance only if the public agency confronts an emergency and can explain the nature of that emergency in the minutes of the meeting. The Nutmeg Board of Education is hard-pressed here to justify meeting on an emergency basis without posting the meeting twenty-four hours in advance.

Revisiting concession discussions will not likely be fruitful here. We are now seeing some concessions from a few teacher groups. However, the Nutmeg Board is correct to be cautious about committing to an extended contract term in exchange for concessions now. What is “reasonable” is changing each month, as pressure on public budgets continues throughout the nation. Indeed, with growing scrutiny and agitation over public sector compensation, moderation and possibly even restructuring of public sector pay and benefits may continue for several years to come.

Intentionally or not, the Board of Education antagonized the Board of Finance by its unflattering flyers to parents and others. The legal question, however, is whether the Board violated the law in doing so. When a referendum is pending, public expenditures to affect a referendum result are illegal, and public officials who authorize such expenditures can be personally liable for such expenditures (without indemnification by the public agency itself). A classic example of illegal “expenditures” is using students as couriers for such materials, which the State Elections Enforcement Commission has repeatedly equated to an expenditure of postage. However, if there is no referendum pending, the statutory prohibition does not apply, and boards of education may use student couriers, post materials on its website, and otherwise spend money to get its message out. Such activities must be undertaken with caution, however, because they can invite a request from opponents of the board’s budget for a similar opportunity to get their message out through flyers and otherwise. The scope of any required reciprocity is unclear, but at least there is not the personal liability that exists when public funds are spent to affect a referendum result.

The biggest concern here is the uncertainty over what the rules are for education appropriations. Right now, we just do not know. In recent years, the “minimum budget requirement” (MBR) has been the primary legal mechanism governing municipal appropriations to boards of education. The MBR approach is relatively new, and (at the risk of oversimplification) it has meant that the municipality must maintain its funding for education at prior levels and also appropriate any new funds received from the State for educational purposes to the board of education.

As of this writing, the General Assembly has not adopted an MBR requirement for 2011-2012. My colleague Chris Tracey has been following this issue closely, and he advises that, if and when Governor Malloy’s plan to flat fund the ECS grant is adopted, we anticipate that the General Assembly will pass an MBR for 2011-2012 that will require that local funding be maintained at the same level as in 2008-2009 (as was the case for 2009-2010 and 2010-2011). However, the current MBR legislation establishes the MBR as the municipal appropriation for 2008-2009 minus the amount of federal State Fiscal Stabilization Fund (SFSF) aid received by the District (SFSF aid is part of the expiring federal stimulus package). The new MBR being considered would establish the MBR simply as the 2008-2009 appropriation level (with no SFSF offset). If the General Assembly adopts such legislation, towns that reduced their education appropriations below that for 2008-2009 using the SFSF offset for 2009-2010 or 2010-2011 will have to increase their educational appropriations for 2011-2012 to comply with the MBR. In short, stay tuned to make sure that you are aware whether and how municipal appropriations for educational purposes will be affected by this impending legislation.

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