SEE YOU IN COURT - February 2019

The Nutmeg Board of Education is in the thick of its budget deliberations, and the members are having trouble establishing priorities. Board members Red Cent and Penny Pincher are still smarting from the budget overrun in special education costs last year, and they have been arguing that the Board should allocate more money to the special education line item in the 2019-2020 to avoid another problem. By contrast, Ms. Chairperson and Mal Content are presuming optimistically that special education costs will moderate, and they want the Board to allocate funds to hiring more teachers to reduce class size in the elementary schools. Given these conflicting views, the Board members are having a very difficult time coming together on a budget to present to the Nutmeg Board of Finance. When Mr. Chairperson adjourned the meeting last week, he admonished the Board members to reflect and reconsider their respective positions.

Veteran Board member Bob Bombast saw this impasse as an opportunity to be the leader he fancied himself to be. He sat down with A Practical Guide to Connecticut School Law and read all he could about the budget process for boards of education in Connecticut. The reading wasn’t exactly scintillating, and it was a slog for Bob. However, by the end of the evening, he came up with the answer, at least in own mind.

“Fellow Board members,” Bob began grandly in an email to the entire Board, “I am pleased to share with you the results of my research on the Board budget process. We don’t really have to worry too much about where we put the dollars in the first instance. Under Connecticut statutes section 10-222, we can transfer funds throughout the year. In preparing the budget right now, we just have to make our best guess. If special education costs are higher than we budget or lower than we budget, we can just move money around. So we should do our best and chill out.”

In less than an hour, both Penny Pincher and Mal Content responded to Bob’s email, copying the other Board members. Penny wrote that, with that understanding the Board can simply move money around, she will drop her insistence on allocating additional funds to special education. Ever the naysayer, however, Mal Content wanted to know more. “What is the process for making these transfers?” he asked. “I don’t want to make a big public deal out of it!”

Bob was ready with the answer. “Have no fear!” he wrote back. “The Board can delegate the authority to make transfers to Mr. Superintendent (or whomever else we want). We can just tell Mr. Superintendent in executive session what we want him to do, and the necessary transfers will be made.”

That explanation mollified even Mal Content, and the path was clear for an agreement at the next meeting. When the Board met again, the discussion was short and sweet, and the Board promptly adopted a budget to submit to the Town. Mr. Chairperson was greatly relieved to have this important task complete, and he thanked Bob Bombast for his leadership and guidance on the issue.

Local reporter Nancy Newshound was already curious as to why the Board members were now playing so nice, and Mr. Chairperson’s comments confirmed her suspicions. Nancy stood up and asked, “Hey! Did you guys have a secret meeting?”.

Mr. Chairperson tried to walk it back. “Of course not; Board members just chatted a bit between meetings. Nothing wrong with that!”

*  *  *

Is Mr. Chairperson correct? Was Bob Bombast right?

Sadly, both were incorrect in their own ways. Mr. Chairperson and Bob failed to recognize that the discussion among the Board members on email was a “meeting” in violation of the Freedom of Information Act (as a convening of a quorum by electronic means to discuss matters within the Board’s jurisdiction without a proper posting).

Bob’s misapprehensions about the budget process require more discussion. At the outset, we note that Bob correctly described the longstanding right of boards of education in Connecticut to expend the appropriation made to them for school purposes “by and in their discretion,” including the right to make transfers from one line item to another. Conn. Gen. Stat. § 10-222. However, Bob should have read more carefully, because he misinformed the Board by stating that Mr. Superintendent can make line-item transfers. Allocating resources for a school district is a fundamental board of education responsibility, both in adopting a budget in the first place and in making transfers over the course of the year.

Section 10-222 provides that boards of education “may transfer any unexpended or uncontracted-for portion of any appropriation for school purposes to any other item of such itemized [budget] estimate.” Moreover, the statute now elaborates on the nature of such transfers, stating that “‘itemized estimate’ means an estimate in which broad budgetary categories including, but not limited to, salaries, fringe benefits, utilities, supplies and grounds maintenance are divided into one or more line items.” Thus, a “transfer” for purposes of the statute does not occur with every adjustment, but rather only when the Board moves funds from one “broad category” to another.

Perhaps Bob’s confusion stemmed from the provision in Section 10-222 that states that boards of education may “authorize designated personnel to make limited transfers under emergency circumstances if the urgent need for the transfer prevents the board from meeting in a timely fashion to consider such transfer.” Reading carefully, we see that this authority is quite limited. Furthermore, the requirements that follow destroy Bob’s hope for stealth transfers by Mr. Superintendent. If and when a “designated” person makes an “emergency” line item transfer, the statute requires (1) that it be announced by the board of education at its meeting, and (to make matters worse) (2) that a written explanation of the transfer be sent to the legislative body of the town (and, if the legislative body is the town meeting, to the board of selectman).

Given these requirements, clarity as to these procedures is especially important, e.g., defining what is a “line item,” identifying who can make emergency transfers” and setting the limits on any authority to make such transfers. It is thus advisable that boards of education have in place a policy to provide guidance on such matters. For this policy, as well as other required policies, CABE’s policy service is a great resource, as described here. CABE can assist boards of education by providing different policy options for boards of education and by reviewing with boards of education their current policies and those that boards of education may be well-advised to adopt.