BENNINGTON -- The state Board of Education voted Tuesday to postpone a decision on the Village School of North Bennington's independent school application, leaving open the possibility of legal action by the independent board.
By a vote of 5-1, the state board agreed with a recommendation from Education Commissioner Armando Vilaseca for the board to push back a decision until there is a positive vote by residents in the school district to close the public North Bennington Graded School in the summer of 2013. Local residents did give authority to the public Prudential Committee to close the school this summer and lease the building to the Village School, but the change was not approved by the state board in time to do so. Now, residents will need to approve similar motions specific to the 2013-14 school year.
"I think we need to know that indeed the local area is approving of this. There's been some changes (to the most recent application regarding special education) and finances," Chairman Stephan Morse said following the meeting. "I think there was some concern we didn't want to approve it today subject to the town vote and have that interpreted or communicated that we were supporting it in terms of the local vote."
If local voters approve closing NBGS, Morse said the state board should also give approval to the Village School's application. "I feel confident that if the voters approve it then we'll move ahead and approve it," he said.
Tuesday's postponement by the state board concluded an hour-long discussion regarding whether the board had the authority to delay a decision on the application.
Representing the Village School at the meeting was Eva Sutton, co-chairwoman of its Board of Trustees, Thomas Martin, principal of NBGS and anticipated head of school of the Village School, and attorney William Meub, who argued the state board does not have the right under the law to delay a vote pending local approval.
That position was also presented in an Aug. 16 letter to the Department of Education and the state board from attorney Erin Gallivan, of the Rutland law firm Meub, Gallivan and Larson. The letter cites statute indicating the state board shall approve an application that meets "financial capacity, faculty who are qualified by training and experience in the areas in which they are assigned, and physical facilities and special services that are in accordance with any state or federal law or regulation."
"The statute is clear and unambiguous regarding what the Board of Education may consider when reviewing an independent school application for approval, and leaves no room to consider other issues. The statute mandates if the application meets the requirements in the rule, it must be approved," Gallivan wrote. "The statute provides no authority to ‘table' an application based on the actions of a local public school district."
The letter states that the state board must approve the application, and if it refuses to consider the application the Village School will pursue an appeal to the Vermont Supreme Court or take other legal action.
Sutton said following the meeting a decision has not been made on what the Village School's next course of action will be or whether it will seek legal action.
"We will regroup and see what strategy is next," Sutton said.
Mark Oettinger, general counsel for the DOE, disagreed with the Village School's interpretation of the law and said after the meeting that statutes do not address specific issues such as the unique proposal of closing a public school and opening an independent school in its place.
"The decision to postpone (a decision) pending the outcome of the electorate vote, I think, is clearly within (the state board's) discretion," Oettinger said.
The majority of the board agreed.
"The bottom line was we feel that under the law and under the rules that the voters should speak first," Morse said.
Bonnie Johnson-Aten cast the only vote against postponing a decision.
If local voters do favor closing the public school and leasing the building to the Village School beginning in the fall of 2013, the motion of the state board is to take up the application at its following meeting.
The other real concern Morse said he had last week regarding the application was about how special education would be handled, although those questions have since been answered.
Sutton said the Village School will employ its own special education staff and will no longer seek an agreement to contract services of Southwest Vermont Supervisory Union. SVSU has been working on an agreement between itself, the public Prudential Committee and the Village School in recent months to provide services, as was the expectation earlier this year when the Village School application went before the state board in May. At that time an agreement had not yet been reached, which was one of the reasons the application was tabled.
When the Village School board submitted a revised application this summer it called for providing its own special education, although it continued to seek an agreement with SVSU as a backup plan. Sutton said the option of contracting services is no longer on the table.
"To clarify the application we made the commitment to provide special education services through the independent school," she said.
Mount Anthony Union board and SVSU board Chairwoman Sean-Marie Oller, a member of the state board, did not participate in the discussion or the vote.
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