Vermont Legislature SmartTranscripts:

[Unidentified Member (Senate Education Committee)]: We're live.

[Sen. Seth Bongartz (Chair)]: Okay. It's the Senate Education Committee on February 24. We're back after a short break from our joint hearing with Senate Finance, then now we're back into our own committee. Well, we weren't anyway, we're doing our own thing now. And we're going to just spend couple of minutes of with let us say council Beth St. James. Just reviewing what an S u is versus a supervisory district or other form of district. Does one of those terms mean and what what he was what was each one mean and what they do?

[Beth St. James (Office of Legislative Counsel)]: Sure. That's Saint James' Office of Legislative Council. So what I've asked Daphne to post, and what I think would be most helpful is if we look at the presentation we looked at the beginning of last session. And hopefully when you are at home with nothing better to do, you're looking for something to keep yourself busy, this should be hopefully a decent visual guide to jog your memory of, ah, yes, that's the difference. But let me share my story. Okay. So, and we can You tell me a piece you wanna go at. So this first slide here, it's really the second slide after the title slide, ignore the box around there. I can't figure out how to get rid of it. But supervisor union is the red oval. The school district is the blue square, and then the school is the school. Okay. Can you see how they're all nestled within each other?

[Sen. Seth Bongartz (Chair)]: I remember this presentation.

[Unidentified Member (Senate Education Committee)]: Check out?

[Beth St. James (Office of Legislative Counsel)]: I'm getting a lot of use out of

[Unidentified Member (Senate Education Committee)]: this. Okay,

[Beth St. James (Office of Legislative Counsel)]: so, Supervisory Union. This language, the citation here, 16BFA 26A1, contains the duties of the Supervisory Union Board. That's a link. That will take you directly to the statute. I have not listed every single duty of the SU board, so if you wanna look at that statute, can just click on it. So this is the definition of a Supervisory Union way up at the top there. It is an administrative, planning, and educational service unit created by the state board. They can be made up of multiple school districts or just one school district. If the supervisory union has multiple member school districts, then it is a union, right? It is the joining of multiples. If the supervisory union only is responsible for one school district, then it's a supervisory district. All supervisory districts are supervisory unions, but not all supervisory unions are supervisory districts. So some of the duties of a supervisory union board, they establish the curriculum, receive disbursement of federal funds, professional development, professional services, including management and construction projects, contracts, transportation, etcetera, but the big one is special education services. And like I said, this is not an exhaustive list of what is listed in 261A.

[Unidentified Member (Senate Education Committee)]: Question, yes. Definition year end 60 PSA 261A, that also applies to supervisory districts?

[Beth St. James (Office of Legislative Counsel)]: Yes, so this definition is actually taken from the master definition section in Title 16, Section 11. And so you can see where are they?

[Unidentified Member (Senate Education Committee)]: Did I go by it? Okay,

[Beth St. James (Office of Legislative Counsel)]: here we go. Supervisory union means an administrative planning and educational service unit created by the state board. It's the same language I've got on the slide. That consists of two or more districts. If the context clearly allows, the term also means a supervisory district. I didn't draft this originally. The way I interpret this is the distinction I just made. All supervisory districts are supervisory unions, but not all supervisory unions are supervisory districts. You can see that the definition of supervisory district uses the term supervisory union to define itself. So, supervisory district is a supervisory union, then only consists of one school district.

[Unidentified Member (Senate Education Committee)]: Thank you.

[Beth St. James (Office of Legislative Counsel)]: Every single committee I have appeared in front of regarding this question leaves more confused. No one, everyone is confused by these terms. If so, if you find yourself confused, are in good company. I personally think the visual representations are helpful rather than just trying to use the words, but if you are not a visual learner, then I will try and work with you to come up with different distinctions.

[Unidentified Member (Senate Education Committee)]: But what's that square mean?

[Beth St. James (Office of Legislative Counsel)]: That is a school district.

[Unidentified Member (Senate Education Committee)]: Yes. So what's the best approach here? Should we try to articulate, like, what the end goal is with independent schools, off non operating districts, public schools, etcetera? Can I give you the vision and you tell us what the terminology would apply given the scale of a district?

[Beth St. James (Office of Legislative Counsel)]: I think it depends on your goals. I am a lot of this is policy choice because it's all it's all laws that you have written.

[Unidentified Member (Senate Education Committee)]: So if we give you the goals, you can articulate that into a

[Beth St. James (Office of Legislative Counsel)]: I can articulate it under how it would work under current law, but it doesn't have to remain under current law.

[Unidentified Member (Senate Education Committee)]: Then with that said, if we articulate the goals, Can you then tell us how current law doesn't necessarily apply and how to massage that language to solve the language problem?

[Beth St. James (Office of Legislative Counsel)]: It tends.

[Unidentified Member (Senate Education Committee)]: Okay. You're not

[Beth St. James (Office of Legislative Counsel)]: gonna get a lawyer to give you a straight black tie answer if you give them an opportunity not to. It depends because there may be constitutional implications that require you all to make conservative decisions, even though there's nothing that strictly prohibits you, or make really liberal decisions, even though there's nothing that directly authorizes what you're trying to do. It really truly depends on the very specific policy objectives you are trying to achieve. But yes, in general, that is what I am here for. You tell me your goals and I try and help you draft them in legislative language.

[Unidentified Member (Senate Education Committee)]: Okay, I'll give you a goal. It's a governance question. Governance that would eventually drift into what's the bright term for it. So the governance group, the governance would be overseeing a combination of independent schools and public schools in some non operating areas. So we had to expand the district to cover a wider geographic footprint. What type of this isn't, I'm not even sure. Governance is, like, this isn't, these aren't governance units. These are

[Beth St. James (Office of Legislative Counsel)]: The blue squares are.

[Unidentified Member (Senate Education Committee)]: Oh, okay. Okay. Alright. Good. Good. So what governance system could cover a combination of independent and public schools?

[Beth St. James (Office of Legislative Counsel)]: So I would say you have nothing in current law that allows a public body to govern an independent school. You have a certain amount of regulation at the state level by the agency of education, but those are independently operated schools. So if you were looking to, when I hear the term governance, I'm thinking run by the same people, right? Reporting to the same people.

[Unidentified Member (Senate Education Committee)]: So with a mix of representatives in a governance unit, a school board, one type or another, there's no examples in The US where

[Beth St. James (Office of Legislative Counsel)]: Oh, I didn't say that.

[Unidentified Member (Senate Education Committee)]: Okay, that's what I'm asking.

[Unidentified Member (Senate Education Committee)]: I'm not asking for a specific really, you know, firm answer. I'm looking to kind of see what's the realm of policy.

[Beth St. James (Office of Legislative Counsel)]: Private schools are regulated differently in every state.

[Unidentified Member (Senate Education Committee)]: Is there a model? You know Vermont's landscape as far as independent, public, etcetera. I think what you might be asking, at least in the department,

[Sen. Seth Bongartz (Chair)]: is if you have different structures, if you have a district that is for instance operates K-eight and then is non operating for nine-twelve, and then you have a different district that is set up differently, maybe does the reverse, but we have an example, they can be here.

[Beth St. James (Office of Legislative Counsel)]: I don't know that that's legally accurate.

[Sen. Seth Bongartz (Chair)]: Okay. I thought they had the camp, I thought that in a single district you have to have the same structure.

[Beth St. James (Office of Legislative Counsel)]: Under our current law there is nothing under our current law that would allow one school district to both operate fifth grade and tuition students for fifth grade.

[Sen. Seth Bongartz (Chair)]: That's what I was was what I was saying.

[Beth St. James (Office of Legislative Counsel)]: But you get to change the law. Okay. Okay. So it's a policy choice with a giant asterisk because there may be constitutional implications to that.

[Sen. Seth Bongartz (Chair)]: So right now, anytime we have that, it makes a difference there over here in an SUV. Correct.

[Unidentified Member (Senate Education Committee)]: It's taken up with yeah. Correct. Same with ways. Yeah. Hurry,

[Unidentified Member (Senate Education Committee)]: Do you have an example of

[Sen. Seth Bongartz (Chair)]: what the

[Unidentified Member (Senate Education Committee)]: constitutional implications could be?

[Beth St. James (Office of Legislative Counsel)]: Yes. So, you've got the education clause of the constitution that requires, under Brigham, the provision of substantially equal educational opportunities to all students, and I think you have a Supreme, I don't think, I know you have a Supreme Court case from 2020, a Vermont Supreme Court case from 2023, the Vitale case, that did not get to the merits of the case, that dismissed the case, I believe, on summary judgment, because basically the court said the case wasn't good enough to advance. But in order to get there, they had to have a certain amount of discussion about the legal implications of if they were to get to the merits of the case.

[Unidentified Member (Senate Education Committee)]: We have finished, but I wanna have to see if anything.

[Beth St. James (Office of Legislative Counsel)]: And so there is a provision in the Vitali case that's not, I would say, the holding of the case, but given the facts in front of the court at that time, and the pleadings they had available to them, so no evidence, just the paper, and under our current governance system, the court found that tuition is not a educational opportunity in and of itself, it is a means to achieve, to provide the constitutionally required education. I don't know if the court is going to make that same analysis under a different governance structure, or if there are different facts in front of the court. The court basically said, Plaintiffs, you have not shown me that the fact that kiddos in one district who have, who tuitioning is, who are in a non operating district, and therefore they are tuition out, versus kiddos in the public school area, you have not shown us that there is substantially unequal educational opportunities. The court leaves it open to someone bringing a new case with new facts that maybe could change their determination of whether tuition is a means or an opportunity. And that case was decided under our current governance structure. So, any changes you make to our governance structure, our educational governance has the potential to change a court's analysis. But that's just the education clause analysis. There's also a common benefit clause analysis, which is the three part test that is essentially looking at when the government provides a service or a good, is there a segment of the population, a portion of the population that does not have the benefit of that service or good, and is that okay under

[Unidentified Member (Senate Education Committee)]: the three part justice? I

[Beth St. James (Office of Legislative Counsel)]: am happy to come in and talk as long as you would like me to on these constitutional topics, but you have me here to talk about supervisory unions. Just the few minutes left. Okay. So all that to say, I don't There is no that I'm aware of under state Vermont state law, there is no court case that is 100% controlling on whether you can have tuition and operation in the same district.

[Sen. Seth Bongartz (Chair)]: Sandy? But there are big flags.

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

[Unidentified Member (Senate Education Committee)]: Yeah, can you repeat what you just said?

[Beth St. James (Office of Legislative Counsel)]: Yeah, I am not aware of case law in Vermont, state case law, that is controlling, meaning it is your North Star, it is what you have to abide by, that says you can't have tuition and in the same school district, but also vice versa. I am not aware of a case that says you can have tuitioning and operation in the same school district. Part of my job is to take a look at all of the case law available and provide, to answer your questions really, and to provide guidance depending on what your goals are. But this is an area where, depending on the choices you make, it is likely to invite litigation no matter what you do. And whether that litigation is successful is going to depend on the facts of the case, the bench, how good the attorneys are who brought the case. I mean, many different, the legislative record that you all are creating right now can and will be used against you in a court of law. There are so many unknowns that I can't offer you a magic bullet, but depending on what your ultimate goal is to get to 700 basis point, I can provide as much help as I can. Keep going? Yeah. Okay. Moving on to school districts. One big difference that I wanna point out between supervisory unions and school districts is that term administrative service unit. Supervisory unions are not municipalities, they do not have taxing capacity. School districts on the other hand do. So the definition for school districts in the master definition list in section 11 in title 16, basically just lists all the, well, it doesn't basically list them. It lists all of the different types of school districts with that big caveat at the end. Publicly elected board, that's the big catch all for what is a school district. Governed by a publicly elected board. There are several types of school districts. Do you want to go into that detail? Or you can move on to some live examples.

[Unidentified Member (Senate Education Committee)]: Why don't we move on to that, So,

[Beth St. James (Office of Legislative Counsel)]: again, powers of school districts, powers of the school board. This is the hotline here. You can click on it. This is not an exhaustive list. These are some of the powers of school boards that I see most often discussed. Here's a picture of the different types of union school districts. What we're gonna look at, we're gonna move to this Rutland Northeast Supervisory Union example and look at some real world examples of supervisory unions and school districts. So remember back to that first slide, the red oval is the supervisory union and the blue squares are its member school districts. So this is a supervisory union made up of two school districts, the Barstow Unified School District and the Otter Valley Unified Union School District. And then within each school district, there's different operating patterns. So, you can see the Barstow Unified School District operates a Pre K through eight school and tuitions grades nine through 12. And the Otter Valley Unified Union School District operates Pre K through 12. They are separate municipalities, separate school boards, one superintendent. That superintendent lives in the oval. That's the supervisory union. Easy, right?

[Unidentified Member (Senate Education Committee)]: Yep.

[Beth St. James (Office of Legislative Counsel)]: Okay. Even easier. Here's an example of a supervisory district, Milton. There's one blue square here, so one member school district, so it is a supervisory district. There's no union here. Milton Town School District operates pre k through 12. One superintendent, one school board, one school district. There's one school board for Barstow, one school board for Otter Valley Unified Union School District, and then one supervisory union board, which is made up, is not an elected board. It is made up of members appointed from the school boards.

[Unidentified Member (Senate Education Committee)]: Can it be an elected board?

[Beth St. James (Office of Legislative Counsel)]: Sure, but then we're gonna get into the constitutional principles of apportionment and, you know, one voice, one vote. Sorry, go ahead.

[Unidentified Member (Senate Education Committee)]: I was gonna say, so across the board, are the SUs all not elected?

[Beth St. James (Office of Legislative Counsel)]: No. Yes. Supervisory unions with multiple members, school districts, yes. All of their board members are appointed. They're all school board members of their member school districts that are appointed to the school board, and there's a different apportionment of school board members for every supervisor at Union. They get to decide that through their bylaws.

[Sen. Seth Bongartz (Chair)]: The reason that can work is because it's a non governmental entity, it's a provider of services.

[Beth St. James (Office of Legislative Counsel)]: The reason it works that way is when you have an appointment process you don't trigger the constitutional obligation for one voice one vote. It's an election that does.

[Sen. Seth Bongartz (Chair)]: But it's also not a governance unit, the SU, it's a provider of services, is that?

[Beth St. James (Office of Legislative Counsel)]: That is accurate, I don't think that has anything to do with you can or could not have an elected board. Because the supervisor union is not a municipality, you don't have one electorate. You have multiple different You have the electorate of each of the member districts. So if you were going to be moving towards requiring an election, a public election for a Supervisory Board, you'd wanna get Tucker and Tim in here, and not Wyoming. Okay. This is my favorite example. One SU, five school districts, a million different operating patterns. Oh, that's pretty clear. So you've got Trying to make it bigger but keep it all visible. So you've got the Southwest Vermont Union Elementary School District, which is just organized to provide elementary school. And you can see that the member towns of the Union Elementary School District are listed twice because they also need to be members of someone that can provide high school education. So, I didn't have space to put the cute little school houses, so I've listed the schools on the right hand side here. So the Union Elementary School District, the Southwest Vermont Union Elementary School District is made up of Abdominal Shaft, Shaft, Bury, and Woodford. And they have three different pre K through six elementary schools. And you can tell by the name of those elementary schools where they are geographically located. Then Bennington is its own, is also part of the Union Elementary School District. It only operates Pre K through five and you can see they've got one, two, three elementary schools in Bennington. So, total of one, two, three, four, five, six elementary schools in that Union Elementary School District that are being operated by the school district. Then you've got Mount Anthony Union School District. Middle school and high school operated members are Powell, Woodford, Shaftsbury, North Bennington, and Bennington. There is more nuance here regarding union school districts, elementary school districts, high school school districts, unified union school districts, modified union school districts, MUDs. We're not gonna get into any of that, Just the visual here is meant to show you you had two relatively simple examples, and this is meant to show you that you can also have a supervisory union that contains multiple different school districts that have all kinds of different operating patterns. One superintendent for all of those school boards. We've got five separate school boards. Some of them are gonna share members because it's a union elementary school and they might also be on their union high school district. But the board for the Supervisory Union is gonna be made up of members appointed from all of those different school boards to the Supervisory Union Board, but that superintendent is responsible for all of those school districts. As opposed to the Milton Superintendent, who is responsible for one school district. And the Rutland Northeast Supervisory Union Superintendent who is responsible for two school districts. And that is all I have for

[Unidentified Member (Senate Education Committee)]: Yes. This might be a question more for you. Are you aware of any precedent where you have a mix of possibly geographic areas which have operating schools and then non operating areas that are represented by the school itself, charter school, independent school, whatever. You're kind of blending of governance given the variety

[Sen. Seth Bongartz (Chair)]: of school scenarios out there? Well, the independent schools never have representation on Indian. Never ever? Like, nationwide. Oh, that I don't know. Oh. I know. Okay, sorry.

[Unidentified Member (Senate Education Committee)]: We're all like. I'm so upsetting for mom but yeah. We're all looking at what's now or what has been. Yeah. We're talking about the realm of the possible for the future. How do we weave together every contributing school in our education ecosystem? That that's the real question.

[Unidentified Member (Senate Education Committee)]: Yeah. It kinda goes to my question of, you know, or comment that we need to, you know, forgot what word is. We need to start calling something else. Right. We can't. Because of the law.

[Unidentified Member (Senate Education Committee)]: I think you can because we change the law. Right. Right. Just just the law. So our root already has four point. Uh-huh. Yeah. Way back four years ago in health and welfare. We make the law so we can change the name. Right. Well, SUs are creatures of statue, right? Right. Change statue. If if needed. I'm just saying that I don't want to get bound up on SU, SD, dot, dot, that put legacy. Well, we are.

[Sen. Seth Bongartz (Chair)]: Okay. We are slightly behind schedule, but not too far. Thanks. Sure we'll be talking to you again.

[Unidentified Member (Senate Education Committee)]: That was actually very helpful.

[Sen. Seth Bongartz (Chair)]: Thank you. Hey. Good morning. Have

[Unidentified Member (Senate Education Committee)]: I sent you one? Think can everything there. We're almost Your access I don't think I have. Just my report then.

[Beth St. James (Office of Legislative Counsel)]: I've I've seen it on your website. Okay. Alright.

[Unidentified Member (Senate Education Committee)]: Hey. People need a break? Five minutes? Yeah. Okay. Five minutes, and

[Sen. Seth Bongartz (Chair)]: we'll we'll be so back back at four.