Vermont Legislature SmartTranscripts:

[Beth Ann St. James (Office of Legislative Counsel)]: We're live.

[Seth Bongartz (Chair)]: Okay. This is the Center of Education Committee, Tuesday, February 10. Continuing our work, much of today is around, if there's couple now, is around the next steps with Nexus seven three. And so we're gonna start off with what's the council, St. James and Tucker Anderson talking about the state board authority to require frequent workers just so as we go forward, we understand the parameters of what we can and can't do or can and can't require if we were gonna head or not drive. Well, before is we all know everybody knows everybody here, so you're you're on.

[Beth Ann St. James (Office of Legislative Counsel)]: Great. Beth Ann James, office of legislative council.

[Tucker Anderson (Office of Legislative Counsel)]: And doctor Anderson, our member the site, that is it.

[Beth Ann St. James (Office of Legislative Counsel)]: We have not rehearsed any. We have not. We just bring our fine legal mods to you. And I think we're gonna talk a little bit more generally than just state board authority and talk more specifically about separation of powers, what the legislative power, what's an executive branch power, and how do those two different powers interact and complement each other. And then more specifically, we can look at act 46 and act 49 related to an actual example of some of that target share.

[Seth Bongartz (Chair)]: And then the one patient to talk

[Beth Ann St. James (Office of Legislative Counsel)]: about Athens.

[Seth Bongartz (Chair)]: Yeah. Yep. Okay.

[Beth Ann St. James (Office of Legislative Counsel)]: Who do you want to spell?

[Tucker Anderson (Office of Legislative Counsel)]: Oh, you should absolutely start. Grace. You had her rolling.

[Beth Ann St. James (Office of Legislative Counsel)]: Okay.

[Tucker Anderson (Office of Legislative Counsel)]: You teed it up.

[Beth Ann St. James (Office of Legislative Counsel)]: I just love to hear myself talk, so it

[Tucker Anderson (Office of Legislative Counsel)]: doesn't I'm really not sure what

[Seth Bongartz (Chair)]: we're gonna talk about. So,

[Beth Ann St. James (Office of Legislative Counsel)]: as you all know, because you see me all the time, I'm your education policy attorney, and Tucker is

[Tucker Anderson (Office of Legislative Counsel)]: Government operations, municipal corporation, charters. So,

[Beth Ann St. James (Office of Legislative Counsel)]: when we talk about school districts, you often hear me and my colleagues and other folks in this area talk about school districts as municipalities. And that concept has come up a lot as we talk about education transformation and perhaps taking our 119 school districts down to a smaller number. Now, whether that is through a voluntary process, an act of the legislature, or something in between is a policy choice for you all to make, or maybe you don't do anything, also a policy choice. But when we talk about school districts as municipalities, that has some very important context in Benning. Some of it is related to taxing capacity, which as we know, the education world is extremely important because that's how we fund our education system here in Vermont. But the other piece of that, and I don't think I'll throw it to Tucker, is that our constitution of lays out the supreme powers of each branch of government, right? And it is our guiding star when we're looking at state law. And so, you all are the legislative branch who writes the laws, that is your power, and then the executive branch executes the laws. But sometimes you need to give them a little guidance, sometimes what they need to do may look like they're trying to exercise a legislative power, and when it comes to municipalities, there's some very specific language in our constitution about the creation of municipalities.

[Tucker Anderson (Office of Legislative Counsel)]: So, starting from the top,

[Seth Bongartz (Chair)]: the Vermont constitution. I realize I should have set this up a little bit better as starting here. So, as we were talking, I was over at legislature council, and we were talking about Act 46, and the notion, the fact that Act 46 contained language that allowed the state board to force victims to emerge under some circumstances. And we were talking about how that might not fit into what we do going forward here. And Beth made the point to me that it's more complicated than you might realize. There are requirements and there's things you have to do in order to allow that. So that's so as we're going forward and as things are gonna emerge in this committee, so I think it's important that we understand those parameters. So I didn't I just wanna make sure no vital rules. So now That's great. Good read

[Tucker Anderson (Office of Legislative Counsel)]: to me. The revoc Constitution is the great constraint on the plenary authority of the legislature. And this branch of government has all of the governmental power and most importantly, the core lawmaking functions of state government. Working within that in section six of the Vermont constitution, the general assembly is granted expressly the authority to constitute towns, cities, and boroughs. Borough is a very unique term and is borrowed from the Settington constitution because we took our constitution from Pennsylvania. Alright, in addition to that, the General Assembly is granted the express authority to grant charters of a corporation broadly. That includes governmental corporations and non governmental corporations, subject to section 69 of the Vermont constitution, which was adopted in 1937, to restrict the application of that legislative authority and ensure that special laws creating corporations could only be used to constitute municipal corporations, educational corporations, reformatory corporations, and other similar private elements and area corporations, and that for all other purposes, general law would be used to grant corporations within the state. There was also a reservation at the end of that section that allowed the General Assembly to modify, alter, or repeal granted Charters of Incorporation moving forward because of a very interesting case in the nineteenth century, Dartmouth College. So with that in mind, it has been the holding of the Vermont Supreme Court through multiple centuries that the creation and also of municipal corporations is a core lawmaking function of the general assembly, and that in all other contexts, it is exclusive to this branch of government and is non deluded, with the exception of one decision in 2019, which said that because of the custom and history, not only in this state, but in other states, of delegating specifically for the creation of school districts a portion of this authority to co equal branches of government, or occasionally down to subordinate units of government, it is okay to delegate that core lawmaking function, provided that it meets the standards what the legal community, the courts call the non delegation doctor. I know Beth is ready to explain in great detail, but the summary note is that you have to build channels that guide the flow of legislative power and provide sufficient guidance to the other branches of government to whom you are delegating your lawmaking authority and the exercise of that authority, not in the discretion to sit in your seats and determine what the law shall be. You do this all the time with rulemaking authority that is granted to executive branch agencies.

[Beth Ann St. James (Office of Legislative Counsel)]: Say that again, rulemaking is not an executive branch.

[Tucker Anderson (Office of Legislative Counsel)]: It is not an executive branch pathway, it is a delegation of your authority. Similarly, if at some point in the future, you are going to grant an executive branch agency the authority to create school districts, that is your power that is being delegated and must be appropriately constrained in order to meet constitutional requirements. So the starting point is no, but if you yeah, okay. Yes. Yep.

[Seth Bongartz (Chair)]: So what's the relevance of that particular topic to what we're doing here? So I don't I haven't heard anybody yet say we're going to delegate district warming to some other group or probably different. Well, there's an option. It's an option. And we would be out.

[Beth Ann St. James (Office of Legislative Counsel)]: My turn. Of course.

[Seth Bongartz (Chair)]: Last one.

[Beth Ann St. James (Office of Legislative Counsel)]: So at 46, we did a high level overview of it last year, was a culmination of many, many years' work on behalf of the legislature, trying to put incentives, directive feelings out into the field to say, talk amongst yourselves and form larger school districts, consolidate, right? We started in 2010 with Act 153, and then in 2012, we had Act 156, and there was direction from the legislature to the field on what they should consider when they were exploring mergers amongst themselves, size of the districts, operation structures of the districts, etcetera. And then it provided, each of those acts provided different incentives if you were to meet different goals. And then we ended in Act 46, which we didn't really end in Act 46, but Act 46 is what we all talk about when we talk about school district mergers and how we arrived at our current government state. Act 46 said, here's our preferred government structure. That's actually the phrase that the legislature used. Here's all the criteria for that preferred governance structure. Here's some incentives, talk amongst yourselves, and if by a certain date you have not merged, then the secretary is required, secretary of education is required to look landscape and give a report to the state board of education on anyone who hasn't merged and whether there needs to be a merger to meet the goals of Act 46. And then the state board of education took that recommendation from the secretary, did their own analysis, and made a determination of where there were school districts that needed to merge in order to meet the goals of Act 46. As Tucker's already walked you through, merging of a school district is the creation of a municipality, and that is a core legislative function. And so, the state board created some new school districts, right? I think you hear the term forced mergers or state created school districts. And some folks were not happy about that. And so what do we do in America when we're unhappy about something? Why do have jobs? We So, a number of school districts, school boards, parents, students, and taxpayers got together and they challenged Act 46 implementation. And there were a number of challenges, and we're only going to talk about that one, that improper delegation doctrine challenged today. If you have questions about any of the other questions, including statutory interpretation, I'm happy to talk about them at another time.

[Seth Bongartz (Chair)]: Yes. I just want to make sure that the two young students in the background are seeing there's a quiz.

[Beth Ann St. James (Office of Legislative Counsel)]: So, of the arguments the plaintiffs had was, wait a minute, you're creating municipalities, you're creating school districts. These were school districts who said, uh-uh, we are not merging, and the state board said, yes you are, and here is your new legal entity. That's a core legislative function, that's improper delegation of the legislative power. And as Tucker talked about, the court went through the history of the state board's role in school districts, governance, including the fact that for many, many decades, our state board of education was required to essentially sign off on voluntary mergers, approve articles of agreement. The court also spent several paragraphs discussing the historical difference between incorporation of municipalities and the creation of school districts and how those aren't always one and the same. And so, they're kind of, you know, making some wiggle room for themselves over whether this is truly a core legislative power to create a school district, even beyond whether there was proper delegation. And they ended up saying, you know what, this was fine, because, and I'll read directly from Act 46, there was more than sufficient guidance to satisfy the lawful delegation standard. Acts forty six and forty nine set forth detailed legislative findings and explicit policy goals. Further, the law specified preferred and alternative school district governance structures for the board to approve based on explicit conditions and criteria. Further still, the law set forth detailed processes and procedures by which the agency and the board must consider the state's various proposed school districts, all within the confines of the laws, policies, goals, and criteria. Indeed, it is difficult to imagine more specific guidance for the board to apply its discretion than the balance of the authority delegated to it by the legislature.

[Seth Bongartz (Chair)]: Did the court go through Act 46 and tell

[Beth Ann St. James (Office of Legislative Counsel)]: you exactly what was helpful in the moment of making their decision? Nope. That's as specific as they got. So, the goals of Act 46, they said were important. The processes and procedures that the state board was to use, the identification of the preferred and alternative school governance structures, are those channels that Tucker was talking about. There was really no discretion on the part of the board. Well, there was discretion, But the legislature had narrowed their discretion significantly by controlling the process that the state board was supposed to comply with, by controlling the goals that their decisions were supposed to meet, the different types of school districts, the preferred and alternative school district structures. Those were all of the constraints that the legislature put on that power that it delegated to the state board, and the Supreme Court in 2020, so this is a pretty recent case, that that was enough. There was no improper delegation here. But the court didn't go through and say, and this is what did it for us. So, there is no we can walk through, and I have a list of, I think, the sections that I look at and think this is definitely something that the state board was the Supreme Court was looking at in Act 46. Some of them are specifically called out. I think some of them are not specifically called out, but it's kind of a no brainer. But there's no boxes to check. It's not if you just say this is the average daily membership of school districts, state boards, put them all together. That's not a box that you get to check. It's the totality of the circumstances. Is everything that was in Act 46, and the follow-up to Act 46, Act 49, where you provided more detailed guidance on the process, that is what allowed the Supreme Court to find that this was not an improper delegation. All that to say, I don't know if you were to give the state board power to create new school districts, if the Supreme Court is gonna decide the same thing, right, for many different reasons. One of them is, it depends on what your legislation looks like and how much direction you give with that delegation. The other piece is we have a new Supreme Court. If it was the same five people for the last twenty years, then we could see this trajectory. That's a different potentially analysis than when you have changeover in general, regardless of who the person is. So, there is no way for me to sit here and say, yep, this is exactly what you have to put into legislation in order to pass muster. But it does give us, the Athens case in Act 46 and Act 49 does give you some examples of where the Supreme Court is found in the past, relatively recent past, that with this guidance, the delegation was proper. Else When you would you go

[Seth Bongartz (Chair)]: go to your delegation, it has to be, the guardrails have to be pretty specific of what you're allowing.

[Beth Ann St. James (Office of Legislative Counsel)]: Here's the fun thing. It's all what your policy goal is. If your goal is to create chaos, then don't provide any delegate, provide any guidelines. Right? Yep. If your goal is to pass legislation that achieves your goals, including being upheld by our highest court, then yes. It's the same, I think of it as the same, and correct me if you think differently, but I think of it when we think about rule making as well. I don't think we talk enough about the direction that you should be providing to the executive branch when you are delegating or when you are asking an executive agency to reopen rules. That's policy decision, not how specific you wanna be, but if you are looking for a specific outcome, should be very specific in your direction to them, your legislative intent.

[Tucker Anderson (Office of Legislative Counsel)]: And an important note here, Beth was talking about the composition of our state Supreme Court, but it's important to note that just as the time that it happened since its predecessors were decided, the US Supreme Court has changed direction on its analysis of delegations of legislative authority in multiple cases, and these standards are becoming more and more strict over time for just how much legislative authority can be delegated to administrative bodies and what these standards of definiteness for the underlying statute need to be in order to pass constitutional muster that hasn't quite trickled down to the state level yet, but you should expect that because many of the decisions we're talking about are based on standards that were developed in the seventies and eighties at the US Supreme Court level, that eventually, we will get to the point where now that those have been clarified or partially overruled by the US Supreme Court, that our standards of deafness and our non delegation doctrine will start to match what has been adopted at the US Supreme Court level.

[Seth Bongartz (Chair)]: It's a living well, it's a living, breathing thing.

[Tucker Anderson (Office of Legislative Counsel)]: So, you brought up the it starts as a no, but it gets to a yes. And what I would point out is that what Beth just went through, there are two components. First, is this even possible? Can you do this under our constitutional framework? And Athens says, yes, it's possible. And there, Athens, as I pointed out, is a bit of a well known history of decisions around this. And it's if you read the opinion, it is interesting that many of these citations that you see are not to cases. They are definitely not to cases within our state or even within our federal jurisdiction. They are to secondary sources, including McQuillan's Encyclopedia of Municipal Corporations, and if you go to what's cited in McQuillan's and look through the footnotes, they are all homegrown states with constitutional provisions that are very different from Vermont's. So it is still, in some ways, susceptible to challenge in the future. And certainly, although Athens is binding on these questions, there's there's room for argument in the future. And the one thing that was not tested and happens that I always throw out there for committees that are dealing with general law incorporation of governmental entities is that you have to keep an eye on the churches, because if a school district that had a Title 16 appendix charter had some portion of that charter altered by the board as part of the reorganization, that could have been a basis to point at, wait a second, now the executive branch is effectively repealing a statutory provision codified in title 16 appendix, or they are altering a component of state law codified in statute, and that is interference with the core lawmaking function at its heart. Right? That didn't happen in essence, but it could easily happen if the general assembly were to delegate the authority to create new school districts without having something that supersedes existing chartered school districts.

[Beth Ann St. James (Office of Legislative Counsel)]: Like, we have two school districts that still are operating under a charter, and one of them is when you ski. Is what? When you ski.

[Seth Bongartz (Chair)]: So thinking about a map, if there were to be a map, what does that what what does that is a practical matter for us as well if we weren't looking at a map? If you are create if you,

[Beth Ann St. James (Office of Legislative Counsel)]: the legislature, are creating those new school districts, that is well within your purview. In fact, it is really truly in your purview.

[Seth Bongartz (Chair)]: It will provide it shorter.

[Beth Ann St. James (Office of Legislative Counsel)]: Oh, yes. You can supersede. Yes. Absolutely. We it's language that one sentence. Yep. And you would supersede articles of agreement the same way.

[Seth Bongartz (Chair)]: What's the other one, by the way?

[Beth Ann St. James (Office of Legislative Counsel)]: I think it's somewhere in Bennington. It's somewhere down in Bennington. I wanna say North Bennington. I can look it up offline and get back to you, but

[Tucker Anderson (Office of Legislative Counsel)]: And there's still references to school districts that are also scattered throughout title 24 appendix in the town, city, and village charters as well. There's been a bit of cleanup over the years, but they're still out there.

[Beth Ann St. James (Office of Legislative Counsel)]: That is not only in Title 24 appendix, but the Title 16 appendix, there are still many, many, many educational charters that are no longer operating, but are still on the books, and would be a great project many years from now when Tucker and I are not here. But that is, you know, as we as you all continue this conversation about education transformation, it's a bit of housekeeping that is really not housekeeping. It's a little bit more important than that, but we need to keep in the back of our minds.

[Seth Bongartz (Chair)]: We'll schedule it for 2050.

[Tucker Anderson (Office of Legislative Counsel)]: I think it's so perfect.

[Seth Bongartz (Chair)]: We had a lot of we'll stick it off for the 02/30.

[Beth Ann St. James (Office of Legislative Counsel)]: So Daphne has posted the Athens opinion on your website along with links to acts acts forty six and forty nine. As Tucker said, it is really interesting. There's so much citation to cases outside of Vermont when we're talking about the history of how school, creation of school districts has been treated in the past, which is To me, it means that this is an area of case law in Vermont where if you wanna look for something Yeah, there's a

[Tucker Anderson (Office of Legislative Counsel)]: of authority.

[Beth Ann St. James (Office of Legislative Counsel)]: That's for your position. There's a dearth of authority in either direction. Right? Cause we're not operating with a lot of Vermont case law. So if your goal is one thing and and there's a history of relying on cases outside of just our state, but also our federal, you know, second circuit, you're gonna be able to find that, aren't you?

[Seth Bongartz (Chair)]: Well, I mean, think you the case gives us at least some guidance that we should be thinking about. Yep. Yeah.

[Beth Ann St. James (Office of Legislative Counsel)]: And if you do get to that point, we can look at I've made a list of, you know, the specific sections in Act 46 and Act 49 that I, you know, assuming the court was looking at, and we can look at how detailed those get, for examples. But again, this is not a checkbox situation. It may be that your, well, it just, it ultimately depends on what your goals are and how do you give the appropriate level of guidance to whatever administrative body you have tasked with carrying out meeting those goals.

[Seth Bongartz (Chair)]: Okay. Yeah. We saw, you know, frankly, in Elkhart, the results of the than some less than clear statute that Yeah,

[Beth Ann St. James (Office of Legislative Counsel)]: so we don't even, Yeah, we're and we're not even getting into the, like, very limited, you know, grounds on which rules can be objected to and how important legislative intent is for that and a burden shifted when it comes to litigation and enforcement and all of that. But just in general, when you think rule making, be specific.

[Seth Bongartz (Chair)]: Yeah. Yeah. We'll solve the results. So what's a reformatory corporation?

[Tucker Anderson (Office of Legislative Counsel)]: That would be a person.

[Seth Bongartz (Chair)]: Any other questions? Thank you. Thank you

[Tucker Anderson (Office of Legislative Counsel)]: all. We

[Seth Bongartz (Chair)]: actually don't have anybody until 01:45. Yeah, I can go off. I can go off and be back in ten minutes.