Monday, May 24, 2010

Town Council Cuts $1,000,000 from BOE; Restores Its Budget

After the voters rejected the Budget last week, the Town Council tonight cut the $1,000,000 that the Board of Finance added to the Board of Education Budget.  By doing so, the Budget that will next go to the voters is the Budget that it originally approved.  I believe that the next Referendum is set for June 8.

Supporting the BOE Budget: The Law

Here is one of many inquiries that I have received:  "I know that it's a violation to use taxpayer funds, including money used to pay salaries, to advocate a position on the budget, but is it a violation now that we voted down the budget?  My kids are being inundated at school with political propaganda and I'd like to make a formal complaint if that is appropriate."

The following is an excerpt on this topic from A Practical Guide to Connecticut School Law by Thomas B. Mooney who is a Partner at Shipman & Goodwin.  As readers know, I think that this work is the best treatise on any legal topic that I have ever read;  the excerpt is posted here with the Author's permission.   

"Many town charters provide that the board of education budget will be submitted to referendum, either upon petition or in the normal course. Where approval of the board of education budget requires a referendum, school board members and other school officials are free to express their own views, but they must take care not to expend public funds to influence any person to vote for approval of the budget or any other referendum question.

Actions of boards of education are not subject to review by referendum except as provided by law. For example, some years ago the Town of Milford sought to hold an "advisory referendum" posing the question, "Are you in favor of the Board of Education entering into a busing contract presently known as Project Concern for the forthcoming year, 1969-1970?"  The Superior Court, however, enjoined the Town from conducting the referendum because the matter was for the Board of Education to decide: When a question such as this, whether or not the contract for busing should be entered into, presents itself, and no provision exists for its submission to referendum, the expense of submitting it to the voters, even on a "straw vote" basis, as here, would constitute a misapplication and waste of public funds. Murray v. Egan, 28 Conn. Supp. 204, 208-09 (1969). It is appropriate, therefore, to conduct referenda only in accordance with law.

When referenda are held, it is important to avoid any expenditure of public funds to advocate a referendum result. Conn. Gen. Stat. § 9-369b prohibits any such expenditures of public funds to influence a vote on a referendum question. The scope of this prohibition is very broad, and it applies to both local and regional school districts. The statute clearly prohibits a board of education from paying for posters or an advertisement urging approval of the board's budget in a pending referendum vote. However, the law also prohibits indirect expenditures. The State Elections Enforcement Commission, the agency responsible for administering this statute, has, for example, repeatedly held that it is a violation of this law to permit students to act as couriers for information advocating approval of a referendum question, because such delivery would be the functional equivalent of the cost of postage. This prohibition applies whether the material is prepared by the school district or by a third party, such as the PTO.

Using equipment or supplies to produce materials advocating approval of a referendum question is similarly prohibited. This prohibition extends to such use even if the party advocating a referendum result reimburses the district for the use of the equipment. School officials granting permission for such improper activities can be personally liable for the value of the facilities or equipment used. School facilities, however, can be made available to parties advocating a referendum result if they are made available to all interested parties on a non-discriminatory basis.

The prohibition against expending public funds to advocate a referendum result applies once a referendum has been scheduled. Significantly, prohibited advocacy is not limited to direct statements, such as "Vote Yes." The Commission will look at such materials as a whole to determine whether they are neutral and factual, or whether they cross the line and constitute advocacy materials. If they do constitute advocacy, expenditure of public funds on their preparation and/or dissemination will be a violation of the law.

In this technological age, it is important to be vigilant against making such indirect expenditures. While advocacy material may generally be posted on the school district website, it must be removed once the referendum is "pending." Avalon Bay, Communities, Inc. v. Gulbin, File No. 2001-186 (St. Elec. Enf. Com. March 27, 2002); In the Matter of Matthew Paulsen, Bethel, File. No. 2003-152A (St. Elec. Enf. Com. 2003). The same analysis applies to a "link" to such material. Also, when students expressed support for a referendum on a publicly-funded cable access program, a violation of the prohibition was found. In the Matter of Daniel Bernier, Killingly, File No. 97-219 (St. Elec. Enf. Com. 1997). Compare In the Matter of Paul Benyeda, Montville, File No. 2002-149 (St. Elec. Enf. Com. 2002) (mayor did not violate prohibition by making advocacy statements on his own time on cable access program that was not publicly funded). A related question is whether a board of education can maintain its practice of broadcasting and re-broadcasting its meetings while a referendum is pending, even if advocacy statements are made. While it does not appear that the Commission has addressed this issue, the answer appears to be a qualified yes. It is important to maintain the established practice with regard to such broadcasts. Any special re-broadcast may be seen as an expenditure to advocate a referendum result.

The State Elections Enforcement Commission has provided guidance concerning these prohibitions in a short flyer. This helpful, concise summary is available at, and it addresses the questions most frequently raised concerning Conn. Gen. Stat. § 9-369b. For example, it specifies that "a notice limited to the time, place and question to be voted upon may be sent home to parents via children in school," but it states that "children in school may not be used as couriers of information that advocates a position on a referendum." It also defines "advocacy" broadly: A communication advocates a position on a referendum when in part, or taken as a whole, it urges the listener or reader to vote in a particular manner. The style, tenor and timing of a communication are factors which are considered by the Commission when reviewing alleged improprieties of Section 9-369b. In Sweetman v. State Elections Enforcement Commission, 249 Conn. 296 (1999), the Connecticut Supreme Court confirmed that this statement is a proper description of the legal standard. Moreover, it applied this standard to the communication at issue in that case, and held that the communication violated the law because the content would encourage a reader to vote in favor of the referendum, even though the specific words, "Vote Yes" were not included.

The law sets forth three "safe harbors," i.e. situations where public funds may be expended concerning a referendum result without violating the law. First, a public official may expend public funds to prepare a written, printed or typed summary of his or her views and to distribute that summary to the news media. Significantly, the official may express support for or opposition to the referendum in such a statement. Such a summary may also be provided to members of the public upon their request, but public funds may not be expended on a general distribution of such a summary to the public. Conn. Gen. Stat. § 9-369b(a).

Second, by vote of the legislative body, a town may authorize the preparation and printing of concise explanatory texts concerning referenda proposals. If the legislative body is the town meeting, the board of  selectmen may authorize such explanatory texts. The town clerk is responsible for preparing the text, and it is subject to the approval of the municipal attorney to assure that the text does not advocate either the approval or disapproval of the question. This option is also available to a regional school district. The regional board of education may vote to approve an explanatory text, and the secretary of the board is responsible for preparing the text and otherwise fulfilling the duties of the town clerk, and the text must be approved by legal counsel for the board.

The statute also empowers the legislative body of the municipality or regional board of education to authorize "the preparation and printing of materials concerning any such proposal or question in addition to the explanatory text." Conn. Gen. Stat. § 9-369b(a). Such materials are subject to the approval of the municipal attorney, and like the explanatory text must be neutral and advocate neither approval nor disapproval of the referendum question. Id.

Third, a municipality may provide by ordinance for the preparation and printing of "concise summaries of arguments in favor of, and arguments opposed to, local proposals or questions approved for submission to the electors of a municipality at a referendum." Any such ordinance must provide for the establishment of a committee to prepare such summaries, and the members of the committee must represent the various viewpoints concerning such referendum questions. When such summaries are prepared, they must then be approved by vote of the town's legislative body, and are to be posted and distributed in the same manner as are explanatory texts prepared by the town clerk for referendum questions. Conn. Gen. Stat. § 9-369b(d). Interestingly, however, when it extended the provisions for explanatory texts to regional school districts in 2004, the General Assembly did not take similar action with regard to this provision.

Though the law does not expressly so state, it is important to keep in mind that school board members and school officials retain their right under the First Amendment to speak out in favor of the proposed school budget or other referendum question. The prohibition applies only to the expenditure of public funds. School officials can certainly advocate for a referendum result at meetings of the board of education. In addition, since board of education members do not receive a salary, their devoting their time to such advocacy would not be considered an expenditure. Other school officials may speak out as well, as long as they do so voluntarily on their own time,
so that the value of their salary will not be an imputed expenditure to advocate a referendum result.

Finally, the General Assembly has granted special status to challenges to referenda. A person claiming that (1) he or she is aggrieved by a decision of an election official, (2) votes were miscounted in certifying a referendum result, or (3) there was a violation of certain laws concerning referenda may petition a judge of the Superior Court for expedited relief, and the judge must act, before or after the referendum, on a tight timetable in hearing the matter and issuing a decision. P.A. 04-117, Section 4.  In any event, the prohibitions in the law must be taken seriously.

The law provides that persons violating its provisions are subject to a fine not to exceed twice the amount of the illegal expenditure or $1,000, whichever is greater. Moreover, the law specifically prohibits a school board or other public agency from reimbursing a public employee or officer for any such fine imposed. Normally, public officials and employees are indemnified for claims made against them for their actions in fulfilling their responsibilities. For fines imposed for violations of Conn. Gen. Stat. § 9-369b, however, one is personally liable."

Thursday, May 20, 2010

Winter Gone Overboard

It appears that rabid BOE supporter Jeff Winter has finally done it.

It's aggravating enough that he airs his ignorance in his rants to the Town Council  -- he's entitled, of course -- but now he's gone off the deep end.

In very public exchanges on Facebook, Winter is engaging in a boycott of local businesses that advocated the defeat of the Budget.  Are you kidding me?  People certainly have a right to do this however misguided and downright stupid it may be: yes go ahead and punish the very entities that contribute to the very survival and well-being of the Town, State and Country.  That makes a lot of sense.

But get this.  Winter is the Vice-Chairman of the Economic Development Commission!  Yes, the ECONOMIC DEVELOPMENT COMMISSION!  Outrageous!

He ought to be removed from the post and the Commission immediately. 

Tuesday, May 18, 2010

Budget Failed

Town:    2666 yes, 1896 no (+770)

School:   2243 yes, 2336 no (-93)

As some of you saw, I was posting on the last entry as the numbers were coming in.  Take a look there to see how the evening progressed.

Now the Budget goes back to the Council.

NMBUDGETFACTS.COM 'Why I do Not Support the School Budget'

I have thought long and hard about this decision.  Remember even businesses can vote so long as they have $1000 in taxable property!  I do not believe the Board of Education has made the efforts that they should have to minimize their request for increases.  For the following reasons I will not support the budget this Tuesday:
The school has made little effort to renegotiate with their various Unions.  Even though Town employees (like most people) have given up their raises 2 years in a row the Board of Ed has proposed the following raises: $1,009, 590 in teacher raises (average raise of 4.24%), $105,216 in administrative raises (average raise of 5.08%), $103,336 in secretarial raises (average raise of 4.87%), $64,352 in maintenance staff raises (average raise of 3.03%).  That is a total of $1,282,494 in raises which is simply unacceptable in these times.  It shall be noted that the Unions on the Town volunteered to give up their raises.
The Board of Education is supposed to make best efforts to state where they believe they will spend their money (i.e. – electricity account should be spent on electricity).  On June 9, 2009 (3 weeks before the fiscal year ended) they made the following transfers: $462, 328.40 transferred from electricity account to other accounts and spent it on things like $12,100.00 for trash liners and $5,500 for cafeteria tables even though we as taxpayers voted for that money to go towards electricity usage expenses!  $240,546.00 transferred from the bus contract account to other accounts and spent it on things like $9,825.00 for hand dryers, $4,800.00 for toilet paper, $4,950.00 for wax, $39,915.00 for cafeteria tables even though it was supposed to be for the busing contract.  $60,528.00 transferred from the natural gas account , $28,599 transferred from the oil account and spent it on things not having to do with utilities.
For the past three years on average, the Board of Ed has overbudgeted $191,543 for fuel, $383,024 for electricity, and $19,179 for advertising expense.  This surplus money is then utilized for things that we as voters did not approve.  The Town Council and Board of Finance both stated that the Board of Education should try to budget their utilities accurately, however, the last 3 years they have overbudgeted their fuel by 21.72 percent and electricity by 28.06 percent.  This is unacceptable.  Any substantial surplus from line items we as taxpayers approve should be returned to the Town instead of spent on things we as voters did not approve.
The Public has brought up several suggestions to consider costs savings including at the BOE meeting on March 30, 2010.  The response from Nancy Latour (Board of Ed members) was, “Mrs. Tarascio-Latour made reference to the fact that during public comment she did not hear anyone reference cuts that would amount to anything substantial.  She did hear comments about reducing printing, postage, and library books. She believes the large cuts could not be found because there isn’t excess in the Board’s budget.”  As a taxpayer to me this is unacceptable as we should be trying to save in every way we can.  Why aren’t we honestly assessing each and every potential for cost savings?
It is for the reasons above that I cannot support the Board of Ed/School budget on May 18th.  We have several small businesses in Town who are struggling right now, we have underemployed and many who are unemployed.  We owe it to them to make the best effort we can to try to minimize their tax increases. 

Friday, May 14, 2010

My Response to Today's Letters to the Editor in the Spectrum

The ignorance of facts is irksome especially at budget times when some BOE supporters are out in full force attacking those who ask even the simplest questions about its Budget.  “You are anti-education,” they say.   To them, I say, “You lack education.”  And respect.

There was a time when The Spectrum wouldn't print letters that contained errors of fact and there was a time when outrageous comments made to the Town Council during public participation were addressed immediately.  Times have changed.  For the worse.

Ali Bitteker, Letter to the Editor, Spectrum, May 15, 2010:

In no year, 2008 or otherwise, did the Town ever have a 4-5 million dollar deficit. 

On June 30, 2008, the Board of Ed did return $741,000 to the Town but it’s my recollection that the money went into a BOE account that’s used for non-reoccurring capital expenses.  For you newcomers, this account was established in the early 90s at the urging of my friend, Tom Pilla, who was on the Town Council at the time.  The BOE has made use of some of this money, leaving a balance in the account today of approximately $400,000.   Even if the money didn’t go into that account, it had to have been used to offset losses.  What often gets lost in these discussions is that all of this money is taxpayer money s if the money was used to offset losses, everyone benefitted.  I’m sure that Ms. Bitteker genuinely supports the Budget but I think that her letter causes confusion and discourages support for her cause, quite the opposite of what she intended.

Wendy Del Monte, Letter to the Editor, Spectrum, May 15, 2010:

Mayor Murphy reduced the original BOE proposal by $800,000 recognizing that many BOE items were “overstated.”  Thereafter, the Town Council Members, realizing that increasing taxes are an anathema to economic growth, wanted the Administrators and Staff to take a wage freeze.  In these troubled times, when all Town Hall employees are taking a wage freeze, they felt that all Boards and Departments should share the pain.   It is also important to note that Ms. Del Monte, like others, is attempting to mislead the taxpayers by suggesting that the Mayor supports the Budget.  The Mayor has not said that she supports the Budget and a lot has happened since the date she made her original recommendation to the Council.

Jeff Winter, Letter to the Editor, Spectrum, May 15, 2010:

This Jeffrey-come-lately makes frequent visits to Town Hall but is having difficulty with room numbers, if you get my drift.  He’s also trying to sell everyone on how the Town should be run.   He has too much time on his hands.   Mr. Winter would be far more credible and feel less need to be arrogant if he took a few crash courses.  He should start with municipal finance, move on to the Freedom of Information Laws and other relevant State Statutes and then he should read the Town’s Charter and Ordinances both of which are in one volume that former Mayor Bobby Gambino called,”the little thick book.”  

With those under his hat, Mr. Winter will learn, for example, that Section 1-225(c) of the Connecticut General Statutes allows items to be added to the Agenda of any regular meeting by a two-thirds vote, that Budget deliberations are one, continued Meeting and money in any department or line item may be brought up at any Meeting and, finally, that agendas may be revised at any time before they must be posted.  He should have been shut down by a point of order when he was standing before the Council and, out of ignorance, attacked the Members of the Council for doing what the Laws and Ordinances permit.

I don’t know what Mr. Winter has done for a living or if he even has a job but it is the height of arrogance to stand up at a Meeting and say that the taxpayers of New Milford are willing to pay more taxes and ask how our elected officials dare to substitute their judgment for that of the taxpayers.  I challenge him to go house-to-house with that attitude and I recommend that he give advance notice to the Police and Ambulance crew.  There’s a lot of suffering going on out there in the real world.

Wednesday, May 12, 2010

BOE Member Wellman 'Is This The Way We Want Our Local Government To Work?'

At the March Board of Education meeting, in connection with its consideration of the proposed Budget, I raised the issue of whether the District could consolidate its facilities and eliminate the use of East Street School. The Chair and the Superintendent indicated that they wished to assemble information and would provide it at the next Board Meeting. At the next meeting in April, the Chair and the Superintendent did not have the information and said that the information would be provided to me at the next Facilities Committee Meeting on May 4. That meeting was canceled but on that date, May 4, the Superintendent stated that the information was not ready and would not be ready for some time. At last night’s meeting of the Board of Education, the Chair would not even allow this situation to be referenced. Apparently, New Milford voters are expected to decide on a budget without being provided with relevant information which was reasonably requested. Is this the way we want our local government to work?

Tuesday, May 4, 2010

Mayor Did Ask All Boards and Commissions For 0% Increase

An Anonymous poster challenged whether the Mayor had asked the BOE for a 0% budget increase.  Someone responded that the challenger ask Town Finance Director Ray Jankowski the question.

Thanks to the FOIL, here's the answer to the challenge.