Sunday, March 27, 2011

Will the SBC Submit to Elections or Oversight?

The article posted below written by Alex Grant which appeared in this week's Longmeadow News is a continuation of a series (see below) which challenges the "self" empowerment of the Longmeadow School Building Committee.  Below are LongmeadowBuzz links to the original article as well as the recent official SBC rebuttal from co-chair Christine Swanson:

Who Put the SBC In-Charge? by Alex Grant, 3/03/11

Will the SBC Submit to Elections or Oversight?

Will the School Building Committee (SBC) submit to elections to select and replace its members?  If not, the members of the SBC will continue to serve indefinite terms.  If not, the SBC will continue to exercise an unwritten mandate that only it will define.

The SBC, through its co-chairperson, Christine Swanson, has responded to my question of "who put the SBC in charge?" by making essentially two arguments.  First, the SBC says that the voters of Longmeadow, by agreeing to fund the feasibility study and by agreeing to fund the construction of the new high school, also agreed to follow the state's rules, and therefore implicitly agreed to the creation of a school building committee.

There's just one catch: the votes for the feasibility study (November 2008) and for the new high school (June 2010) occurred AFTER the SBC was created in June/July 2008.  So those votes could not have given approval, even implicitly, for the creation of the School Building Committee.  Moreover, the town's voters were never asked to vote, even after the fact, on whether to create an unelected board with undefined powers and duties.

Second, the SBC says that the Select Board and School Committee exercised its power under section 4-4 of the Town Charter to create the SBC when it voted in June 2008 to select certain members for the SBC.  But look it up.  Look up the meeting minutes of the meetings that the SBC cites.  The minutes only indicate that certain members were selected.  The minutes say nothing about creating the SBC, and they say nothing about the scope of its responsibilities, its oversight, its term of service, its mission.  Nothing.  And I did a FOIA request to see whether there might be another document, not publicly available, that established the SBC.  Again, nothing.

But let's pretend for a moment that the Select Board and the School Committee did exercise their power under section 4-4.  Under that section, the newly created committee "shall be monitored and dissolved as appropriate" by the appointing authority.  In other words, the Charter requires such a committee to be overseen by the board that created it.  And, the "appointing authority" has the power to dissolve such a committee as it sees fit.  That means that a section 4-4 committee is subservient to the Select Board or School Committee.  In that way, the elected officials of the Select Board and the School Committee must answer for the actions taken by the committees they oversee.

But the SBC is overseen by nobody.  And since it was never given a mandate to follow, the SBC decides for itself the scope of its own authority.  In Ms. Swanson's response, she says that the SBC has "responsibility for shepherding the high school project through the MSBA and town approvals, as well as through the design and construction phases of the project."  There is no document and no decision of the Select Board or the School Committee that articulates the SBC's responsibility in that way, and the SBC points to none.  The SBC functions as a super board, a board of unlimited duration and unlimited discretion.

Under the state regulations the SBC cites, a town must create a school building committee to go through the state funding process.  The regulations require nothing else about the form and membership of the committee.  The regulations do not purport to override any local charters or local law.  Indeed, 963 CMR 2.10(3)(b) states that the school building committee "shall be formed in accordance with the provisions of the Eligible Applicant’s local charter and/or by-laws."  Beyond that, the regulations make "recommendations" about including certain people as members.

To the extent that the SBC leans on the state regulations to justify its self-defined powers, it is leaning on a pillar of sand.  The state regulations say nothing about the SBC deciding on its own which design to submit to the state, they say nothing about indefinite terms for members, they say nothing about requiring independence from the voters and the elected boards of a town.  All of those questions are a matter of town law.

The reality though is that whatever the Charter, the decisions of the Select Board, and the state regulations say, the SBC has exercised power; it has made important decisions, like the design of the high school.  No town official has challenged the SBC in its nearly three years of existence.  Unopposed, the SBC will continue to operate in its usual fashion unless its members decide that the entity should answer to the voters or their representatives.

So, the question becomes: will the members of the SBC voluntarily agree to submit to elections?  If they did, I am sure that many, if not all, would be elected.  Christine Swanson, for one, probably knows more about the state funding process and has worked harder for the new high school than any resident in town.  The members of the SBC are good people, but the committee must be accountable to the voters no matter how beneficent their decisions, and it must have clearly defined powers, just like every other town board and committee does.
reprinted with permission of the author

Alex J. Grant is a lawyer living in Longmeadow.  His email address is

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