We are all going to have to trust Superintendent Richie Smith’s interpretation of the school lawyers’ interpretation of the law.
Again.
Despite a high level of public interest in the legality of the MVRHS School Committee’s acceptance of anonymous cash donations to fund the artificial turf lawsuit, the committee voted on Monday night, Nov. 6, that the public is not allowed to read for ourselves what the school lawyers recently advised in writing — at taxpayer expense — on the subject. All three up-Island members argued for transparency, and voted to make the document public. The rest of the members voted to keep it secret, although they did not cite any authority entitling them to withhold it.
At Monday’s meeting, the superintendent reported that the lawyers’ written opinion advised that the committee can continue to accept and spend anonymous cash donations — just as they did last July. While he did not elaborate, he left the impression that funds may not only be accepted anonymously as to the public, but also anonymously as to school officials and the school committee itself. He conflated the various uses of the term “anonymous,” leaving us wondering: Anonymous to whom?
Critically, therefore, it remains unclear whether the legal opinion states, one way or the other, that it is necessary for even one school official or one school committee member to know the donors’ identities to assess and confirm whether they fit within a category of private donors to regional school districts permitted under Massachusetts law.
Committee member Robert Lionette, who had read the lawyers’ letter, took issue with the interpretation offered by the superintendent. Mr. Lionette said that under his reading of the lawyers’ advice, complete donor anonymity is not allowed under the statute. Given the disagreement among school officials and committee members, the committee voted to go back to the lawyers again, for the third time, for a behind-closed-doors Q and A session.
So again Island taxpayers will have to pay lawyers to untangle the mess that has been wrought upon us by the school officials and committee. And again we will be kept in the dark about what their lawyers say they must do, or may not do.
In advance of that nonpublic Q and A session, please permit me to try to clarify where things stand:
- Is cash allowed to be donated to the school? Yes, this is not disputed.
- May donor identities be kept anonymous from the public? Yes, this is not disputed.
- Does Chapter 44, Section 53A, apply to private donations to our regional school district, limiting them to “a charitable foundation, a private corporation, or an individual?” Yes, this is not disputed.
- If the school has had a past practice of accepting anonymous cash gifts, does that mean they can continue to do so? No, only lawful gifts may be accepted, irrespective of past practices.
- Have other regional school districts in Massachusetts accepted anonymous donations, no questions asked? Maybe or maybe not, but no examples have been provided.
Indeed, there is at least one example to the contrary. City officials earlier this year in Holyoke were very concerned about whether they could lawfully accept under Section 53A a large, anonymous, monetary gift to their public school. They were relieved when they learned that the donor had been confirmed as a “private company,” and thus a legal donor under the statute. They were satisfied that although the donor was to remain anonymous to the public, some officials knew the identity, and were able to confirm the legality of the donation. (The Holyoke public schools are under receivership, and the school committee is not the decisionmaker.)
“This could’ve been sped along a lot faster. They know who this person is, the company as it turns out, it was just anonymous publicly, but that was not explained at the beginning,” Holyoke City Councilor Jourdain said. (See bit.ly/TR_HolyokeSchoolFunding.)
The Holyoke experience highlights the critical unanswered question that remains for MVRHS: Is Massachusetts law satisfied if just one school official or one member of the committee knows the identity of every donor, and can confirm to the full committee that the donors are permitted under the law?
Yes, that is a reasonable interpretation of the statute, in the absence of a judicial interpretation. But we do not know whether school counsel so advised, based on the discussion at the Monday night meeting.
It must be said that the better, more cautious, risk-averse interpretation of Massachusetts law is that the entire school committee should know the identities of donors before voting to accept the funds. Meeting a legal standard is the lowest bar that must be reached, of course, but as a policy matter, we can always do better. Our public school should do better.
So where are we now? Hard to say.
We could be here: If one or more school officials or school committee members, in fact, know the identities of all the cash donors, and can assure the rest of the committee — in public, as required by the Open Meeting Law — that those donors meet the terms of Massachusetts law, then the legal issue is resolved.
Done and dusted.
But instead we are here: No committee member or school official has come forward to say that they know the identities of the donors, and the legal issue therefore remains unresolved.
Vicki Divoll is a lawyer and a member of the Chilmark finance committee. For several years she has acted as liaison to the MVRHS on behalf of the committee.
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