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HomeMy WebLinkAbout1982-01-25 82-69 ORDER82-69 Introduced by Councilor cesarean, Sanuary 25, 1982 CITY OF BANGOR QITEEJ (DrUr,...Piresiting the City Solicitor tp .Is an Opinion Co cerning_.. i the P p P ocedu f C eat Sng School Committee Appomtoo by the City Council By eM City Council Oft u Cita of Beeper: ORDERED, - TUT the City Sblicitor 1fs hereby directed to prepare an opinion for the City Council outlining the proper procedures for amending the City Charter to provide for a-) School. Committee appointed by the City Council. In preparing his opinion, the City Solicitor shell determine whether such an amendment may be obtained under Hare Rule or would require special action by the State Legislature,. - and be it further ORDERED, THAT the City Solicitor shall submit his opinion to the City Council no later than the second regular meeting in February, 1982. * 1 82-69 Introduced by Councilor cesarean, Sanuary 25, 1982 CITY OF BANGOR QITEEJ (DrUr,...Piresiting the City Solicitor tp .Is an Opinion Co cerning_.. i the P p P ocedu f C eat Sng School Committee Appomtoo by the City Council By eM City Council Oft u Cita of Beeper: ORDERED, - TUT the City Sblicitor 1fs hereby directed to prepare an opinion for the City Council outlining the proper procedures for amending the City Charter to provide for a-) School. Committee appointed by the City Council. In preparing his opinion, the City Solicitor shell determine whether such an amendment may be obtained under Hare Rule or would require special action by the State Legislature,. - and be it further ORDERED, THAT the City Solicitor shall submit his opinion to the City Council no later than the second regular meeting in February, 1982. IN CITY COUNCIL 0 n D E R t -' tannery 25, 1982 C .8. JAN 21 A854 Motion to a the question passed by the following yes and no votes. Title, cwncilOxa voting Yes! Bruns,WMerc non, roster, Story, Weymouth,b Nirectin the City Solicitor to Issue : CITY 01 ......... ........................... CITY CLE5A.. Councilors voting not Jordan and Zewdsian. Councilor absent: Was. an Opinion Concerni:y the Proper ........ Notion for CaSSage passed by the " " ""'^ " " "'^ ...... following yes and no votes. Cwu'ilors procedures for Creating a School voting yes: a tables, McKernan, Committee Appointed by the City Conrail Socy and Willey Councilors voting-- u Introduced and filed by Porter, Weymouth and aeWrian. _ C lot absent: Gass. Order passed. IJ 1�• MaJ�\\ .... ComCilmgn Bliss February 19, 1982 TOf Bangor City Council FROM: Robert E. Miller, City Solicitor On January 25, 1982, by virtue of Council Order 982-69, the City Council directed me to issue an Opinion concerning the proper pro- cedures foe amending the City Charter to provide for a school committee appointed directly by the City Council. The Order directs me to consider whether the Home Rule procedures would be appropriate or whether special action would be required of the State Legislature. HISTORICAL BAGNMUND Historically. the City of Bangor schools have functioned with a school committee appointed by the City Council for most of the time since the middle 167018. By virtue of Chaps. 138, P. & S. L. 1875, as amended by Capt 230, P. S S. L. 1876, the City was authorized to manage its schools with a superintending school committee . . . of not less than three nor more than seven members, to be elected by the city council." A review of the session laws suggests that this legislation remained in effect until a new charter for the City was adopted by the Legislature and the voters effective January 1, 1932. Article V, Section t of the new charter included the superintending school committee as being among those officers and boards appointed by a majority of the City Council. The ampoule ion and duties of the committee was provided in Section 9 of Article V, as follows: "Sec. 9. Superintending school committee. Theerintendine school oburittee of the city of Bangor shall consist of five members appointed by the city council, to serve for tense of three years, and until their s appointed and qualified, except that in the first instance one of said members shall be appointed and serve for o e year, two for two years, and two for three years If for any reason vacancy shall exist in the membership of the schoolcmmittee the vacancy shall be filled forthwith by the city council for the unexpired term. The members of 'the school committee shall annually by majority vote designate me of its members to serve as chairman of theschoolcommittee. The school committee shall have all the powers and perform all the duties in regard to the care and management of the public schools of said city, which r a may hereafter be conferred and imposed upon school committees by the lams of this state, except as otherwise provided in this charter. They shall annually, and whenever there i avacancy, elect. superintendent of schools forr the current municipal cipal yea e who shall have the c and supervision of said public schools under their direction, and ace as secretary of their board( they shall fix his salary at the time of his election. They shall annually furnish to the city council an estimate in detail of the several s required during the ensuing municipal year for the some of public schools. On the 'basis of such estimates the city council shall make gross appropriation for the support of public schoolsfor the ensuing municipal year,and such appropriation shell not be exceeded, axsept by c of the city council, but the expenditure of said appropriation shall be order the direction and control of the school committee." [Emphasis supplied] Chapt.. 54, P. 6 S. L. 1931. In 1910 and 1971, due in part to citizen dissatisfaction with the model schools prograrcu, an effort was made to change the school board from one appointed by the Council to a body elected by the voters. Me Council considered the issue on several occasions. on July 12, 1911, Councilor Bigney (by request) sponsored Council Order #240-Y providing for an elected school board. This item was Indefinitely postponed on the same date. On August 9, 1971, both Councilor Cohen (by request) and Councilor Robert Baldacci sponsored similar proposals (Council Order Nos. 266-Y and 261-Y). Both items met defeat on the same date. Another proposal (Council Order #283-Y), introduced by Councilor George Neonates, was killed by the Council on September 13, 1971, -Finally, on September 27, 1971 Councilor Accouter was able to get a new item (Council Order # 291-Y) passed on the same issue. The amendment was adopted by the voters at the November 2, 1971 general election. It should be noted that the amendment creating the elected school board was accomplished by amendment to the Charter under "Name Rule. 11 At that time it had only been available fora very short time, having been adopted as an amendment to the State, Constitution at a Special State Election in November, 1969. See Maine State Constitution, Art. VIII, St. 2, 4 1. The enabling legislation, required before the Home Rule authority could be implemented by Maine municipalities, did not go into effect until May 9, 1970. The School Committee amendment was the first to the Bangor City Charter under the new law, and perhaps one of the first of such charter amendments _ in the State. The concept of Home Rule will be discussed In greater detail below. In 1980 the School Committee charter provisions were again amended to expand the number of members on the board from five to seven. Unlike the previous amendment, the Council chose not to go the Rome Rule route and instead sought legislative action subject to voter approval. The Legislature adopted the necessary legislation, and the amendment was approved by the voters on October 13, 1981. The reason for using a different procedure to accomplish the amendment was as a result of an opinion on the issue written by me earlier in the year. At that time I concluded that a recent decision of the Maine Supreme Judicial Court in School Committee of the Town of Winslow vs. Inhabitants of the Town of Winslow, 404 A.2d 988 (Me. 19]9) prohibited the City from using the Rome Rule procedure. That case construed the applicable State constitutional provisions and statutes to not permit municipal charter amendments under Rome Rule in most matters dealing directly with education on the local level -- including the terms of persons serving on the municipal school board. The whole issue of whether a local charter can be amended under Rome Rule to change the manner or method for selecting school committee members centers around the question of how much authority over education in local public schools has been retained by the State Legislature. In order to understand the problem better, I will briefly review the relevant constitutional and statutory provisions. Article VIII, Section 1 of the Maine State Constitution provides - in relevant part that; "A general diffusion of the advantages of education being essential to the preservation of the rights and liberties of the people, topromote this important Object, the Legislature are authorized, and It shall be their duty to require, the several towns to make suitable provision, at their own exp e , for the support and maintenance of public schools; . . . . This provision has been construed by the Courts to impose a duty on the State Legislature to promote the cause of education. In Opinion of the Justices, 68 Me. 582, 584 (1886), the Maine Supreme Judicial Court stated: "In the constitution, it is declared that a general diffusion of education is essential to the preservation of the liberties of the people. By its very language, it would seem chat the 'general diffusion of education e to be regarded a entially a 'benefit'to the people. If so, than the legislature bes 'full power' over the subject matter of schools and of education to make all reasonable lave in reference thereto for the 'benefit of the people of this state.' . . . Accordingly, 5 from the first institution of the government. to the present day, the general control of schools, and the determination of what shall be a suitable provision by the towns for their support, has been fixed by legislative enactmemt." In Lune V. City of Auburn, 110 Me. 241 (1913), the Maine Law Court again held that the functions of a city council "are in m way related to those of the superintending school committee" and recognized that school committees are a part of the state in much of their functioning, rather than the local government._ _ "We have seen that the policy of legislation has been to place increased power in the hands of the school committee. This i v harmony with wise practice and long experience. The common schoolsrmost cherished institutions. Our people, through their representatives, have recognized this fact by generous and progressive laws. No department of our State government requires officials to be selected with greater care. It fa the purpose of the laws, and has been from our earliest history, to place in office, competent officials for the management of our schools. These officials e presumed to be chosen for their peculiar qualifications." Id, at 247. In Burkett v. Youngs, 135 Me. 459 (1938), the Court was concerned with whether the municipal budget in Bangor was subject to the referendum process. In concluding that the budget was not solely a matter of local concern, the Court observed that education was as a matter of state-wide concern, and not simply a municipal affair, The trend towards state control of education on the local level is reaffirmed in the Winslow decision. The principle is stated as follows: 'The preeminence of the State in educational matters, vis-a-vis local government is clear. One authority o the subject has expressed the general principle and its corollary implications in this manner. The mostuniversal element of conceptual design in the American school system is the maxim that education is a concern of all the people. As it is usually stated, education is a state function. The conclusion from this is that education, en when delegated to municipal officers, -is different from most of the functions of municipal officers in that any state-wide- gelation takes precedence over local regulations even though the right to establish the local regulations m r to a from a municipal charter approved by the legislature or its agents or established by general home rule regulations in the can- stitution itself. In other words, general powers of the municipality, even though they may derive directly from the constitution, =athow,to state regulation on the field of education, established by authority of the legislature. In such cases where themunici- pality acts as the local agent in charge of education, the municipality Is at one and the same time a chartered corporation sed an agency of the state. The Court Went On to state that: 'This Court has repeatedly- reaffirmed,_in various. contexts,_ _ the plenary authority of the Legislature in the control of the public school system of this state. A consistent line of authority developed over the past century culminated i our decision two decades ago n Sgui_ v. City of Augustan x 155 Me. 151,153 A.2d 80 (1959), a In Squires, we stated that '[t]he State controls the public schools', supra at 155, 153 A.2d at 83, and that 'State educational policy cannot and must at be interfered with by any subordinate governing body.' Id. at 159, 153 A.2d at 85. The Legislature, we concluded, controlled 'the educational svetm of the State in811 its varied and inter- twining aspects.' Id. [Emphasis in the Original) With the exception of the Town of Winslow case, all of the above- cited decisions came before Maine municipalities could amend their charters under Nome Rule. Article VIII, PC. 2 § 1 Of the State Constitution provides as follows: The inhabitants of any municipality shall have the power to alter and amend their charters on all matters, 7 p not prohibited by Constitution or general law, which e local and municipal in character. The Legislature shall prescribe the procedure by which the municipality may so act." [Emphasis Added] Implementation of the Home Rule powers granted to municipalities by the above -quoted constitutional amendment may be found In 30 N.R.S.A. gi 1911 at seq. Provisions for amending the municipal charter are located in 30 M.R.S.A. 4 1914. - It should be noted that amendment of local charters under Home Rule is only permitted in matters which are "local and municipal in character." In Town of Winslow, the toss argued that the Court should recognize a distinction between matters of educational policy, i.e., curriculum, and matters of procedure, i.e., elections, in defining the breadth of the Statews authority over local school committees. The Court refused to recognize that argument stating that '. . . We [the Boort] are unable to reconcile it with the lav of this state, nor with what we perceive to be the majority rule." The Court seat on to state its reasons for not accepting the towns argument s follows: Relevant cames establishing the principle that local school boards are state agents or officers abound. (citations Omitted) Moat significantly, courts of other Jurisdictions have Feld that the ma of selecting school boards, including the establishment of terms of office of school board members, is a matter beyond municipal control. This rule has been upheld against challenges premised o constitutional 'home rule provisions. Lanzay. Wooner. 11 N.Y.24 317, 326-327, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed, 371 H.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163 (1962) is on point. Town of Winslow, 992, The Legislatures involvement in the educational system of the State "in all of its varied and intertwining aspects" as discussed in Squires, supra., is recognisable is respect to the selection of school board members. The Maine 0 Legislature has repeatedly expressed itself on thisissue, and significantly has demonstrated a preference for elected, rather than appointed, board members. For example, in 20 M.M.A. 5 471 (unless the municipal charter provides otherwise) the procedure is established for providing for the election of school board members. 20 M.R.S.A. S 302 as the roomer for electing school directors in SAD's and a similar provision for the election of School trustees In community school districts is found in 20 M.R.S.A. 5 372. Wbether the Legislature would defeat any proposal to provide for a council -appointed school board in Bangor is subject to speculation. However, in my judgment, because a majority of school committees are popularly elected, we should be extra careful to insure that we have authority to deviate from the norm. - In addition, it might well be argued that, carried to its logical extreme, construction of the law to permit municipalities to determine directly the manner in which their school committees are to be selected by Home Rule charter amendment would, in effect, authorise the abolition of the commdttee itself. Clearly such a result is not permitted under the State Constitution and the cases construing it discussed above. It might well be argued that the limitations of 20 M.R.S.A. g 471 do not apply in our situation by virtue of 20 M.R.S.A. $ 476 which provides as follows: "Sections 471 and 472 shall not apply to cities or towns whose charters specify the methods of selection and term of office a school committee or board of education; nr to towns, cities and incorporated districts authori2ed by private and special law to choose school committees other .than those herein provided for." In my opinion 5 476 does not became operative until after the , charter is amended. once nocharteris amended to provide the desired procedure for selecting members of the school committee, § 476 obviously exempts the municipality from the procedures established under 5 411. However, g 416 does not go so far as to authorize municipalities to unilaterally under Rome Rule change the method for selecting their school committees. In conclusion, as I directed you last year in your desire to expand the number of members on the school committee, in my opinion, you must go directly to the Legislature to create a council -appointed School Committee. Although it is not absolutely necessary, I think that each an amendment should contain a rider making the proposal sabject to voter approval at a subsequent regular or special municipal election before going into effect. Councilor Gate has inquired about the proper procedure for returning the board co only five members and to provide a method of 'recall" 1 of such appointees. This simply would require a similar proposal to be accomplished in the same way, if desired by the Council. If any member of the Council has any questions or would like further discussion of the issues raised, please feel free to call me. Respectfully submitted, Robert E. Miller, City Solicitor tc I There is new a substantial question whether the "recall provisions" in the City Charter (Art. IV, Sec. 11) as they relate to the school committee would be upheld in the event of challenge. These provisions were added to the Bangor Charter ander Rome Rule. In the Winslow decision the Maine Court specifically cites a Connecticut decision, Sherman v. Hanish, 219 A.2d 91 (1911) striking down a municipal recall procedure a6 it related to the local school committee. See Winslow, suers. at 993.