115 STATE STREET
MONTPELIER, VT 05633-5201

PHONE: (802) 828-2228
FAX: (802) 828-2424

STATE OF VERMONT
HOUSE OF REPRESENTATIVES
January 16, 2019
The Honorable Kathryn Webb, Chair, House Committee on Education
The Honorable Philip Baruth, Chair, Senate Committee on Education
Vermont State House
115 State Street
Montpelier, Vermont 05633-5301
Dear Chairs Webb and Baruth,
We are writing today to respectfully request that the House and Senate Education Committees hold
hearings on the proposal to delay the implementation of the involuntary school district mergers that are
part of the State Education Plan released in November by the State Board of Education.
While all of us have concerns in general about the involuntary mergers put into place, we are not
requesting at this time that they be invalidated.
Rather, we believe strongly that the state must either place a moratorium on the July 1, 2019 deadline
until the lawsuits underway are adjudicated, or simply extend the deadline by one year, to July 1, 2020, so
that we allow the legal challenges to continue, and so that the legislature will more fully understand the
true implications of these mergers — constitutional and otherwise.
There are, after all, significant legal issues that the lawsuits allege if these forced mergers go into effect.
These issues include the following:
1.

2.

Section 10(a)(2) of Act 46 states clearly that the Board was to impose mergers "to the extent
necessary"to accomplish the goals of this Act." The State Board of Education violated this
portion of the law in its November 30, 2018 Order (page 6) by stating that they created preferred
structures (i.e.: merged districts) "wherever possible." Obviously, these are very different orders
and intents.
Section 9 of Act 46 made clear that there was no reason to merge districts that were already
meeting the goals outlined in Act 46 Section 2. But, it became clear during the process that the
Board made no attempt to evaluate the Section 9 proposals on their merits as required by Board
Rule 3440.11 in terms of whether or not they met the goals. The Board never even established
standards by which they might measure whether or not these proposals met the goals. So, in
violation of the intent of the law, mergers were ordered on districts that already met — and even
exceeded —the goals of Act 46. While Donna Russo Savage told the Senate Education Committee
yesterday that 47 districts had their Section 9 proposals honored and were not merged, what Ms.
Savage did not tell the Committee was that most of those districts (38 of them) could not be
merged because of their operating structure--not because of their Section 9 proposal. Ms.
Savage also told the Senate Education Committee in yesterday's testimony that it was not part of
the Board's legal mandate to approve or deny Section 9 proposals but only to accept or refuse
the Secretary's recommendations. A quick perusal of Act 46, Section 8(a)(2)(B) and (b) shows
that this testimony was patently incorrect. The Board's mandate was to review each proposal
on its merits. [See also Board Rule 3440.11.]

 The Honorable Kathryn Webb
The Honorable Philip Baruth
January 16, 2019
Page 2

3.
4.

The Legislature cannot delegate the authority to dissolve local governments (school districts are
municipalities) to the Executive or Judicial branches of government.
The "Default Articles of Agreement" from the Agency of Education violate the Equal Protection
Clause and Due Process Clause of the US Constitution and the Common Benefits Clause of the
Vermont Constitution. Voting is a fundamental right. It is illegal to take debt that was approved
by one community that was given the right to consider and vote on that debt, and transfer any of
that debt to another individual (neighboring community) who was denied the right to vote to
incur that debt.
1. Of immediate concern is the fact that there is enormous confusion in districts being
involuntarily merged. Because of information sent out by the Agency of Education,
some districts believe they must adopt the so-called "Default Articles of
Agreement." On the other hand, another "Transition Timeline" was sent out by the
Agency indicating that 16 V.S.A. 706(n) was operative and the original 90 day window
for adopting Articles other than the Default Articles was no longer meaningful. Now
that they have been told that Section 706(n) is operative many are asking if 706(f) is
operative, which would require votes of each existing district before debt could be
transferred, and if not, why not? Neither section was repealed or amended by the
General Assembly.
2.

The Chairs of both House and Senate Education Committees recognized these potential
problems with voting rights and directed the Agency, the School Boards Association and
the Superintendents Association to recommend amendments to address these
important transitional issues. [See Act 49, Section 8, adding Section 10(d)(3) to Act
46.] In March 2018, the Executive Director of the School Boards Association wrote to
both chairs and said no changes were necessary. That was incorrect, and has created a
process by which the Agency, itself, is writing law.

3.

With Town Meeting Day fast approaching, some of these still existing districts are being
told they must develop one merged budget, even though the Attorney General's office
has agreed to postpone organizational meetings. Furthermore, Vermont state law
requires local school districts to present and vote on local district budgets at Town
Meeting. [See 16 VSA s 422, 428.] If the appellants prevail in court, untangling merged
debt and capital reserves will wreak havoc with the budgeting process. On the other
hand, if the State prevails, merging budgets of the various existing districts would be a
relatively simple process.

Finally, there seems to be some confusion regarding current Vermont statute with regard to the
possibility of legislation to address the involuntary mergers put into place as part of the State Education
Plan released in November by the Vermont State Board of Education.
Specifically, there is an argument being made right now that no legislation is allowed at this time because
there are lawsuits underway regarding Act 46 and the involuntary mergers. This argument specifically
cites 1 V.S.A § 213.

 The Honorable Kathryn Webb
The Honorable Philip Baruth
January 16, 2019
Page 3

1 V.S.A. § 213 Pending suits unaffected — "Acts of the general assembly, except acts regulating

practice in court, relating to the competency of witnesses or to amendments of process or
pleadings, shall not affect a suit begun or pending at the time of their passage."
We have investigated this matter, and would, in fact, disagree, with the assertion that 1 V.S.A §213
precludes any legislation in this area at this time.
In fact, from what we understand, this statute has been misinterpreted as preventing the Legislature from
taking action while a case in court. Since the State is a defendant here, and the plaintiffs are almost all
municipal corporations, and one of the main claims of the appeal is that Act 46/49 is being
unconstitutionally applied, there is nothing prohibiting the Legislature from amending the law to halt
forced mergers. From what we understand, section 213 was designed primarily to protect the interests of
private parties to a lawsuit. The legislation needs only simply to begin: "Notwithstanding any other
provision of law to the contrary,..."
In addition, our investigation has revealed that the legislature has, in fact, passed legislation related to an
issue that was in the process of being litigated. Here are the two most recent example that we have
found:
1)

In 2014, Governor Peter Shumlin signed into law the country's first mandatory-labeling law for
genetically modified organisms. The law was scheduled to go into effect on July 1, 2016.
Immediately following the passage of this law, various industry groups filed a lawsuit against
Vermont. In May of 2016, the Legislature delayed the effective date of the GMO labeling law by
one year to July 1, 2017. The lawsuit was dismissed later (in September 2016) only after the
passage of a federal law on July 29, 2016 that pre-empted state GMO laws like Vermont's.

2)

Act 47 of 2011 amended 30 VSA s20(b) to allow bill-back by the then Department of Public
Service by adding a new (b)(15) in legal proceedings brought by a utility in state or federal court
to charge that utility for the State's costs in the case. This law was debated and enacted in direct
response to Entergy Vermont Yankee suing the Public Service Board and State officials in federal
court over the closing of Vermont Yankee.

We thank you very much for your consideration, and hope you find our request favorable. We are more
than willing to assist in identifying witnesses who can further detail some of the significant risks involved if
the Legislature decides to do nothing to extend the July 1, 2019 involuntary merger deadline.

Very Sincerely,

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The Honorable Philip Baruth
January 16, 2019
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