Pownal School Board votes to join Act 46 lawsuit

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POWNAL — The Pownal School Board signaled its intention at a meeting Tuesday night to join a high-profile Act 46 lawsuit, spelling confusion as the Southwest Vermont Supervisory Union begins preparations for a merger of elementary districts ordered to take effect by July 1.

The board voted unanimously, with member Todd Steinhoff absent, to become the 32nd Vermont school district, and the first in Bennington County, to join the suit. However, because the meeting was warned as a budget meeting and not a board meeting, a new vote has been scheduled for tonight at 5:30 in the school library.

The supervisory union's attorney, through SVSU Superintendent Jim Culkeen, voiced concern about the vote's legality on Wednesday, board chairwoman Cindy Brownell said.

"We're not sure where it's going to go," Brownell said at Tuesday's meeting. "But there's been a lot of concern from taxpayers."

She pointed out that Pownal voters rejected a merger under Act 46 in a November 2017 vote, but are still being forced to participate in a merger with the other elementary school districts of Shaftsbury, Woodford and Bennington.

The vote calls into question the timing of the organizational meeting for the new union district, which has been scheduled for Jan. 15. A motion filed by the Vermont Attorney General's office in Washington County Superior Court seeks to push back the deadline for the required organizational meetings of the merged school boards that have filed suit.

The motion also asks for additional time to respond to the legal challenge filed last month against Act 46, and seeks an extension of time to resolve the lawsuit, particularly the suit's request for a preliminary injunction against the implementation of the forced merger of school districts under the law.

This motion reflects an agreement between the AG's office and the plaintiffs to postpone new union district board meetings, said Charles Merriman, one of the plaintiff's attorneys in the lawsuit.

Both parties have agreed that organizational meetings relating to the plaintiffs' districts would be warned to begin in the third week of February, according to the AG's motion.The court has not yet ruled on the plaintiff's suit for a preliminary injunction and stay, and no hearing has yet been scheduled.

Act 46, enacted in 2015, identified the preferred model of governance for the state's schools as a unified union school district responsible for pre-K through grade 12 education.

"It's a giant step forward," Brownell said, referring to the vote. "But it may not mean anything. We have to take it."

The district is the only one in the SVSU to decide to legally challenge the required Act 46 merger, which was announced in a final plan issued by the state Board of Education in late November 2018.

The legal challenge was initially brought by 31 school boards across the state — predominantly of small rural schools — in Washington Superior Court in December 2018, setting up a legal confrontation over the Act 46 forced mergers that are now underway in school districts.

The lawsuit, filed by attorneys Merriman, David Kelley, and Ines McGillion, claims that the state Agency of Education and the state Board of Education had misinterpreted their powers under Act 46 and were acting in an unconstitutional way in forcing many town school districts to merge, losing their independence and representation in the process.

Pownal will have to file a request with the court to be added as a plaintiff in the suit.

Joining the 31 school districts were seven select boards, one planning commission, taxpayers, parents and students, from Westminster to Montgomery.

Windham County school districts have also joined the challenge, including Athens, Grafton, Westminster, Bellows Falls Union High School and Windham, as well as several parents, students and grandparents.

Ted Fisher, spokesman for the Agency of Education, declined to comment, citing pending litigation.

Phone calls and emails to the SVSU administration and Nelson Brownell, chairman of the SVSU school board, were not returned by press time.

Pownal has been in communication with attorneys about joining the lawsuit for about three to four weeks, but the board has been talking about joining the suit for a while, Brownell said.

The board feels strongly about the fact that the town voted against a merger under Act 46, but is still being forced to merge, she said. The board is also unhappy about sharing significant debt from the Bennington under a merger, she said.

"We felt that it was necessary to take this step, in the interest of the people in Pownal," she said when reached Friday. Several people also contacted the board, saying they didn't understand why a merger was going forward, considering the town had voted against merging.

"I guess that kind of pushed us towards [thinking], 'well, we better do something,'" she said.

With Pownal joining the suit, the transitional board meeting for the new union district that would include Pownal — scheduled for Jan. 15 — should be cancelled, Merriman said.

"If this isn't cancelled, we the plaintiffs will fight that issue separately," he said. "We will dispute the legitimacy of that meeting."

The intention behind the agreement to push the meetings back, he said, is to allow the court time to address the issue of the motion to stay.

The meeting was listed on the SVSU's website as of mid-afternoon Wednesday.

Multiple factors influenced the districts to join the lawsuit, including having to share the debt of other districts, Merriman said.

"The reason that passions me the most is twofold," he said. For one, he said, Act 46 has been implemented contrary to its stated intention to encourage and support local decisions and actions.

"You are not encouraging and supporting local decisions and actions when you as a bureaucrat tell a duly elected board to merge, over its judgement," he said. "Even more so, you're not encouraging and supporting these local decisions and actions when those communities actually came together in many instances and voted against merger."

The lawsuit seeks a finding that Act 46 is unconstitutional as applied, Merriman said.

"We're just looking for the democratic process to be respected," he said. " We want to see towns who voted not to merge, for that vote to be respected."

Merriman said he did not think any other districts are currently signing on to join the lawsuit.

Margaret MacLean, a volunteer working on Act 46-related issues with school districts, said people are most upset about the processes in relation to Act 46.

The state board, she said, did not consider alternatives districts presented to mergers "on their merits."

"And then there's the issue of debts," she said.

Article 5 of the Articles of Agreement governing the implementation of Act 46 mergers require the new union district to assume all debt of the forming districts, including capital debt; the new union district cannot change this article.

MacLean clarified that, from her perspective, there's no need for Act 46 to be scrapped.

"I don't think anyone has a problem with the goals of the law," she said. "I think if people voluntarily choose to merge, that's their decision."

But she said, people should not be forced into mergers if they did not vote to do so.

MacLean said the hope is that the injunction is granted, and stays in place until the underlying legal issues are resolved.

Patricia LeBoeuf can be reached at pleboeuf@benningtonbanner.com, at @BAN_pleboeuf on Twitter and 802-447-7567, ext. 118.


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