Sixty Years Of Precedent And A Statute

Submited by James P. Ehrhard, www.ehrhardlaw.com -- ed.

On July 7^th the Tantasqua Regional District School Committee (“TRSC”) met in a special session and voted unanimously to not seat any person who is unilaterally picked by any Board of Selectmen to fill a vacancy on the TRSC. Why did the TRSC feel the need to take such strong action in the middle of the 4^th of July holiday week?

The TRSC is the committee which oversees and sets policy for the Tantasqua Regional High School and Tantasqua Regional Middle School. It encompasses the towns of Sturbridge, Brimfield , Wales, Holland and Brookfield. The committee has 18 members from all five towns with each town receiving proportional membership based on population figures. Sturbridge, for example, has seven of the eighteen spots on the committee and Wales has two. The Tantasqua regional school district was created in 1952 under the auspices of Massachusetts General Law chapter 71, section 14B (M.G.L. c. 71, sec. 14B). Pursuant to this statute, a Regional Agreement (“Agreement”) was entered into among all five towns in 1952. Such Agreement delineates, among many other things, the apportionment of funding from the five towns, method of student transportation, and so on. It also states that a method of selecting the members of the committee should be delineated. Section 14B also states in its final clause that all matters in the agreement must not be “incompatible with law”. The TRSC is as a matter of statute highly independent from its five towns and unique from any other local governmental committee.

Thirteen members of the TRSC, regardless of town, are elected in each town's annual election to three year terms of office. The other five members are appointed by each town's elementary school committee from each such committee.  Since 1952, as far as anyone can remember, whenever a vacancy occurred in the middle of an elected member's term, a Joint Meeting between a member's town's Board of Selectmen (“BOS”) and the remaining members of the TRSC from that town would fill the vacancy until the next annual Town Election. For example, if a Sturbridge member of the TRSC vacated his seat, the Sturbridge BOS and the remaining six members from Sturbridge on the TRSC would meet in Joint Session to fill the vacancy. This method is precisely what Massachusetts General Law chapter 41, section 11 (M.G.L. ch. 41, sec. 11) specifies should occur for such a vacancy.

Such a Joint Meeting was scheduled to occur in Sturbridge on July 11^th to fill the vacancy of Francis Simanski who recently passed away. On Thursday, June 30^th, the Sturbridge TRSC members received correspondence from the Sturbridge Town Administrator Shaun Suhoski informing them that the BOS's attorney had advised the BOS that the filling of a vacancy through a Joint Appointment was not proper procedure and that the BOS should unilaterally fill the vacancy. The reason, according to the BOS's attorney, was that the Agreement specifically says so. This advice was in opposition to nearly sixty years of procedure done by all five towns. Indeed, the Town Administrator prior to Shaun Suhoski had received the exact same legal advice from the BOS's attorney in 2002 and yet continued to use the Joint Appointment method.

It is undisputed that the Agreement indeed does say such appointments are filled unilaterally by the BOS. It is also undisputed that the statute, M.G.L. c. 41, sec. 11, says it should be a Joint Appointment. There is, in essence, a clear conflict between an Agreement sub-clause and a statute.

The Sturbridge BOS's chairman proceeded to announce at the BOS meeting on Tuesday, July 5^th that assuming that the BOS's attorney's opinion did not change, he as Chairman was suspending the Joint Appointment method that had been used for nearly sixty years and would have the BOS unilaterally fill vacancies.

The TRSC Chairman called the special session of the TRSC for July 7^th and the vote to not seat any such unilateral appointment passed without dissent, thereby protecting nearly sixty years of procedural precedent. Now remember, this unanimous vote occurred among an elected membership from five distinct towns whose members have wildly varying political, economic, and indeed cultural differences. Yet these members were in passionate agreement that the Sturbridge BOS had no right to change sixty years of precedent supported by statute.

Nonetheless, the Sturbridge BOS will vote to appoint a candidate on July 11^th despite the fact that the TRSC said without equivocation on July 7^ththat such candidate will not be accepted.

The BOS chairman points to the fact that its own attorney and the TRSC's own attorney say that the unilateral appointment should be done. Fair enough. But he fails to note that neither attorney has provided one court opinion which specifically states that a clause in an Agreement which is in opposite to a statute (i.e. M.G.L .41, sec 11) somehow prevails. No such case has been provided because no such case exists.

The closest case which provides guidance actually comes from a lawsuit filed by the Town of Sturbridge in 2006 in the Worcester Superior Court against – guess who? - the TRSC. The case, Town of Sturbridge v. the Tantasqua Regional School District, et al., centered on the fact that the Agreement stated a certain funding formula (i. e. how much each town contributes to the Tantasqua budget) that was different to a statute passed by the Legislature. The statute said Sturbridge should pay more money, the Agreement did not. Guess who won? Tantasqua did. Quoting from Judge James Lemire's opinion, “Thus, the court must address whether G.L. c. 70 sec. 6 overrides that 1952 Agreement. Although no appellate court in Massachusetts has addressed this issue, at least two trial courts have held that the statutory funding scheme established under section 6s supercedes a district agreement with a conflicting funding scheme.”

Of course, the 2006 funding scheme case is not by any means an apples to apples situation. But without on point guiding precedent, you look to cases with a semblance of similarity. Judge Lemire ruled that the statute in question trumped the clause in the Agreement. Any lawyer knows that you often win the cases you should lose and lose the cases you should win. Of course, no one knows how a court would rule on the dispute regarding vacancies, but the answer is not black and white unlike the assertions of the BOS's counsel and the TRSC counsel. Thus, why would the TRSC and, for that matter, Wales, Holland, Brimfield and Brookfield allow the Sturbridge BOS to unilaterally change sixty years of procedure? No reason.

The TRSC will begin the process of removing the unilateral vacancy appointment provision when the school year begins and such change should be voted on at all five town's Annual Town Meetings next Spring.  Therefore, all ambiguity will end.  The BOS should not be taking the unilateral action that it is, all against sixty years of precedent in five towns with a guiding statute.