NEWINGTON - State statute prohibits a Board of Education from spending more than its appropriated budget, and the Town Council cannot dictate the use of funds allocated for education purposes, according to a 12-page legal opinion prepared by Board Attorney Thomas Mooney.

       Superintendent of Schools Bill Collins released the opinion-addressing a range of questions related to a Council proposed Memorandum of Understanding-on Tuesday morning. He had requested Mooney’s guidance after the Council voted 5-4 to propose a Memorandum of Understanding asking the Board to use a projected health benefit surplus to cover special education cost overages and the hiring of two high school STEM teachers.

       Under the MOU, the Council would agree to cover any shortfalls that might exist come December, when the Charter allows special appropriations and transfers to be made. The problem with using the health benefit surplus now is that it doesn’t yet exist-while projections have them coming in at a $500,000 to $700,000 credit, that’s less than certain, and past years have even yielded deficits, Collins said at the time.

       Mooney’s opinion elaborated on that point, citing General statute 10-222.

       â€�"Unless and until the Town makes the appropriation in question, the Board of Education would be ill-advised to modify its budget and commit to expending funds that it does not currently have,” Mooney wrote. â€�"Local boards of education in Connecticut have no authority to operate in a deficit.”

       â€�"I don’t think the Council was asking the Board to use money it doesn’t have,” Ancona said during a phone conversation Thursday. â€�"What they were saying was, ‘we don’t really think you need this, but we want to be there for you if you do’.”

       Another point of discussion during the June 8 meeting was whether the Memorandum would be binding after the November elections. On Thursday, Ancona said that MOUs, which he referred to as â€�"gentleman’s agreements”, are typically not.

       As for 10-222, it provides a mechanism for seeking relief, stating that a Board should notify its â€�"Board of Finance, Board of Selectmen, or appropriating authority” of any needed additional appropriation and request it, according to Mooney.

       Board Chair Nancy Petronio requested a $625,000 special appropriation-from the Board’s CIP fund-for the purpose of covering the special education costs and STEM instructors, in addition to recalling 4 teacher layoffs. The Council MOU states a willingness to move up to $578,000 of that, with special education and STEM as sole priority.

       A second component of the legality question deals with whether the Council has discretion over the use of Board funds, to which Mooney cited the Connecticut Supreme court case Ellington Board of Education v. Ellington Board of Finance in stating that they do not.

       The Ellington Board of Education initiated the suit when the BOF earmarked $47,000 of funding toward a school roof repair, prohibiting them from using the money to hire teachers. The court ultimately ruled in favor of the plaintiff.

       By the Ellington precedent, an appropriating body that acknowledges the availability and need for school related funds, must provide them without condition pertaining to their use, Mooney wrote.

       Whether the Council has technically acknowledged the necessity portion is unclear, but the wording of the June 8 resolution-which refers to the â€�"needed $578,000”-implies that they might have, according to Mooney’s opinion.

       In a phone conversation Thursday, Ancona disputed Mooney’s use of the Ellington precedent, saying that the situation is different because both the Board and Council agreed that the funding should go toward STEM and special education costs.

       The only point of contention during the June 8 meeting regarding use was the Council’s exclusion of the four teacher layoffs, which Board Chair Nancy Petronio later said could be recalled.

       On Wednesday Zartarian declined a request for comment on the opinion, which he said he was still reading through at the time. The Board meets Tuesday night at 7 p.m. to discuss the opinion and its options in light of Mooney’s advice.

       Should the Council still chose to hold off on committing the $578,000-in earlier discussions members weighed passing a motion to do this while holding off till December for the actual transfer-the Board’s only viable option might be to make further cuts, since courts are not inclined to get involved in what are essentially considered political disputes, and accepting the terms of the MOU are not recommended, Mooney wrote.