SEE YOU IN COURT - June 2019

The Nutmeg Board of Education is getting ready to close out its books for the 2018-2019 school year, and some of the new Board members are anxious about the possibility of ending the year in deficit. Veteran Board member Bob Bombast has been trying to calm them down, but others in the community have been claiming that the Board members will be personally liable for the additional funds if the budget is over-expended at the end of the year.

Given the continuing concern, as its Chairperson, Bob called a meeting of the Board’s Finance Committee. “OK,” Bob started the meeting abruptly. “Mr. Superintendent, where do we stand on the budget?”

“Well, it was a bad year for special education expenses, and we over-expended that account back in February. We also have had some unanticipated salary expenses, but we are holding our own in the fringe benefits, utilities, supplies, and the grounds maintenance accounts. It will be close, but if we tighten our belts and stop buying supplies, we have a fighting chance to end the year in the black.”

New Board member Penny Pincher blanched noticeably when she heard Mr. Superintendent’s report. “Fighting chance? That scares me! I don’t get paid for this job, and I certainly don’t have the money to make up some deficit!”

Bob tried to reassure Penny by noting that the Board ended the year in a deficit some years ago, and no one had to pay up. But Mr. Superintendent couldn’t leave well enough alone, and he explained that actually the Town had “loaned” the Board money that year from the following year’s appropriation to make up the deficit.

Annoyed, Bob pointedly asked Mr. Superintendent to explain the problem with the special education account. Mr. Superintendent told Bob and Penny that more and more parents of children receiving special education services have been demanding and receiving ESY services. Now Penny was annoyed, asking what are “ESY” services and how much do they cost. Mr. Superintendent explained, “ESY stands for ‘extended school year’ services, and it means that some students receive services over the summer. It can be expensive!”

Mr. Superintendent’s response to Penny got Bob’s attention. “Well,” Bob announced grandly, “that’s not going to happen! We will hold school 180 days, period. That was plenty for me, and it should be enough for everyone else. If parents want summer school, they should pay for it. Mr. Superintendent, please pass on the word.”

Mr. Superintendent tried to explain that special education is, well, special, and that the Board cannot just adopt blanket rules. But Bob and Penny were not to be dissuaded. Mr. Superintendent’s objections notwithstanding, Bob called for a vote of the Finance Committee, and by a two to none vote (the third member of the Finance Committee was absent) the Committee voted to limit Board-sponsored schooling to 180 school days per year.

Will this new rule save Nutmeg money?

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Not a chance. Such a blanket rule runs afoul of the special education laws, and in appropriate cases parents will obtain extended school year services one way or the other. Moreover, the Board has other problems, notably the failure to make budget transfers as required by statute.

As to the special education issue, we start by noting that the first word of the Individuals with Disabilities Education Act (IDEA) is “Individuals.” A key principle of the IDEA is that school officials must consider the needs of children with disabilities on an individual basis. Blanket rules that dictate that children with X problem get Y or don’t get Z are inconsistent with the individual consideration that is required.

Moreover, the IDEA requires that children with disabilities receive a “free appropriate public education,” or “FAPE.” Each word is significant, and such children are entitled to receive at no cost to their parents the services they need in order to receive an “appropriate public education.” That does not mean that school officials must provide children receiving special education whatever services their parents request. In 2017, the United States Supreme Court held in Endrew F. v. Douglas County School District Re-1(U.S. 2017), that “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP [individualized education program] that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (Emphasis added). Board of education members, therefore, can inquire as to the standards district PPTs are applying, and they can promote in-service education for PPT members in applying this standard appropriately. However, boards of education cannot impose restrictions on services to save money.

Another problem here is the failure of the Nutmeg Board of Education to make transfers to assure that none of its line items go into deficit. Conn. Gen. Stat. § 10-222 was amended in 1998 to specify that persons other than the board members themselves may make line item transfers only “under emergency circumstances if the urgent need for the transfer prevents the board from meeting in a timely fashion to consider such transfer.” At the time the statute was so amended, some school districts had threatened to shut down before the end of the school year because they were projecting a deficit. As amended, Conn. Gen Stat. § 10-222 makes clear that budget oversight and concomitant transfers are a fundamental board of education responsibility. Happily, in 2013 the General Assembly amended Section 10-222 to provide further guidance, specifying that “line items” can be “broad budgetary categories including, but not limited to, salaries, fringe benefits, utilities, supplies and grounds maintenance,” and boards should take this invitation to define “line items” broadly so that they may comply with the statute without getting lost in the weeds.

Finally, concern over individual board member liability for over-expenditures is legitimate, based on dicta by the Connecticut Supreme Court in Board of Education v. Town of Ellington, 151 Conn. 1 (1963). There, the Court interpreted Conn Gen. Stat. § 7-349 to provide for personal liability of board members if they make unauthorized expenditures. However, there are no Connecticut cases imposing such liability on board of education members, and there may be indemnity for good faith actions under Conn. Gen. Stat. § 10-235 in any event. As long as board of education members exercise their oversight responsibilities in good faith (including making every effort to avoid authorizing over-expenditures), there is no reason to be concerned about personal liability.