Town, Board Attorneys Sound Off on Proposed MOU
NEWINGTON - The Board of Education and Town Council remain at an impasse regarding a Memorandum of Understanding proposed by members of the Republican Majority-to have the Board use projected health benefit surpluses to cover the hiring of STEM teachers and last minute special education costs in exchange for the promise of a midyear CIP fund transfer to alleviate any shortfall.

       At issue is the legality of such an agreement-called into question by the Board and disputed further in a 12 page opinion issued by Education Attorney Thomas Mooney, School Law Practice Group Director and partner at the firm Shipman and Goodwin.

       Mooney’s contention was that the proposed Memorandum-which would make any transfer contingent on the funds being utilized for the STEM teachers and special education costs-violates precedent set by the Connecticut Supreme Court case Ellington Board of Education v. Town of Ellington.

       In the 1966 case, the Court determined that the Town did not have the authority to mandate that a requested $47,000 special appropriation be utilized for a roof repair-the Ellington Board had wanted to put it toward hiring teachers. While Town Attorney Ben Ancona said during Tuesday night’s Town Council meeting that he agreed with the thinking behind the Ellington case verdict, he did not think that the precedent was applicable due to the fact that the Board and Council agree on the purpose of the funds.

       “No one is disputing what we want to use the money for,” Ancona told the Council.

       Regardless, an agreement that would prohibit a Board of Education from-even hypothetically-using the CIP funds for a purpose other than what it and the Council decided on would be “inconsistent” with the Ellington precedent, which establishes a clear “separation” between the bodies in giving school boards “full discretion” over how to expend its appropriations, Mooney said over the phone.

       Mooney said that the larger issue was that the MOU requested the use of funds the Board does not have-the health benefit credit, if there is one, will not be known for sure until sometime in October. According to Connecticut General Statute Section 10-222, “expenditures by the board of education shall not exceed the appropriation made by the municipality, with such money as may be received from other sources for school purposes.”

       “God forbid it [the surpluses] didn’t come in as projected, they’d be operating in deficit,” Mooney said.

       Ancona had a different take. The fact that the MOU sought to guarantee the Council’s backing in the event of a shortfall would essentially ensure that that would not be the case, he said.

       “If you run into trouble, we’ve got your back,” Ancona said over the phone. “It’s not like they’re spending money they don’t have-the expenditures would be covered.”

       But the CIP funds, technically, are not part of the Board’s appropriation yet-hence, the risk of running afoul of state law-Mooney said. And the fact that the Board needed permission to have that money moved into its operating budget in the first place illustrates that, he said.

       On that note, Mooney points to the Connecticut Supreme Court’s clarifying of its ruling on the Ellington case. In it, the Court stated that boards of education “may not unilaterally transfer funds from one line item to another in a separate capital budget for school purposes”, Mooney writes in an excerpt from his self-authored “A Practical Guide to School Law”.

       The clarification was prompted by the Board of Education v. New Haven case of that same year, in which the Court ruled that the Board and municipality “shared responsibility” in setting the CIP budget.

       “The Court did not overrule Ellington,” Mooney wrote. “Rather, it distinguished between a Board operating budget and a shared capital budget.”

       One thing Ancona and Mooney agree on is that the proposed Memorandum-described earlier by Ancona as a “gentlemen’s agreement”-would not be binding. That question was raised at the Council table months ago when the MOU was first entertained, with the coming November elections in mind.

       “That potentially could be a risk that future councils wouldn’t abide by that, but I’d find that very hard to believe,” Ancona said.

       But with lingering uncertainty regarding the impact the state budget will pose to municipalities, one cannot be too sure, Mooney said.

       “Let’s say the Governor cuts the town by $3 million-which could very well happen,” he said. “It’s non-binding, and the town is inviting the Board to operate in deficit against its [the Board’s] fiduciary responsibility.”

       As for what comes next, Ancona said that it’s up to the Board.

       “The ball is in the court of the Board of Education,” he said. “This body created a vehicle by which what they wanted to accomplish could be done-they chose not to do that.”