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Are Deval and the Legislature Breaking the Law?

by: David Whelan

Thu Dec 24, 2009 at 10:17:34 AM EST


Below is the text from Mass General Laws, chapter 70, section 4. Emphasis is added by me for the purpose of framing my argument that the section of the MGLs is, in fact, a requirement. Note that I have been told by Pat Haddad, former House Chair on the Joint Committee on Education, that this section of the MGLs is "voluntary." Further note that the Governor's office has informed me that "the review commission will not be meeting." Further note that I have volunteered to serve on this commission and note that the commission has not issued a report since summer 2001, in spite of the two year requirement.

My question is simple. Is the Commission required to meet? I am not an attorney, but find the language pretty compelling in favor of the commission having a requirement to meet. I would further make the argument that the "intent" of this section of the MGLs is pretty compelling in favor of the commission meeting more often than every eight plus years.

Apologies for the "high brow" post, but it's relevant, at least to me.

PART I. ADMINISTRATION OF THE GOVERNMENT

TITLE XII. EDUCATION

CHAPTER 70. SCHOOL FUNDS AND STATE AID FOR PUBLIC SCHOOLS

Chapter 70: Section 4. Foundation budget review commission; membership; recommendations

Section 4. There is hereby established a foundation budget review commission to review the way in which foundation budgets are calculated and to make recommendations to the general court regarding such changes in the formula as may be appropriate. In conducting such review, the commission shall seek to determine the educational programs and services needed to prepare students to achieve passing scores on the Massachusetts Comprehensive Assessment System. The commission shall examine the assumed percentage for special education costs included in such formula and shall make recommendations regarding changes in such percentage or other mechanisms to finance special education costs including, but not limited to, reimbursement programs or phased-in, standards-based funding programs that increase the state contribution to such costs over a fixed period of years. The commission shall include the house and senate chairs of the joint committee on education, arts and humanities, who shall serve as co-chairs, the commissioner of education, the chair of the education reform review commission, the speaker of the house of representatives or his designee, the president of the senate or his designee, the minority leader of the house of representatives or his designee, the minority leader of the senate or his designee, the governor or his designee, the chair of the house committee on ways and means or his designee, the chair of the senate committee on ways and means or his designee and one member to be appointed by each of the following organizations: the Massachusetts Municipal Association, the Massachusetts Business Alliance for Education, the Massachusetts Association of School Committees, the Massachusetts Superintendents Association, the Massachusetts Teachers Association, the Massachusetts Federation of Teachers, the League of Women Voters of Massachusetts, the Massachusetts Association for Vocational Administrators and the Massachusetts Association of Regional Schools. Members shall receive no compensation for their services but may receive reimbursement for the reasonable expenses incurred in carrying out their responsibilities as members of the commission. The department shall furnish reasonable staff and other support for the work of the commission.

The commission shall conduct not fewer than four hearings to receive testimony from members of the public. The hearings shall be held in locations that provide opportunities for residents from all geographic regions of the commonwealth to testify.

It shall not constitute a violation of chapter 268A for a person employed by a school district to serve on the commission or to participate in commission deliberations that may have a financial impact on the district employing such person or on the rate at which such person may be compensated. The commission may establish procedures to ensure that no such person participates in commission deliberations that may directly affect the school districts employing such persons or that may directly affect the rate at which such persons are compensated.

The commission's recommendations, together with any proposed legislation, shall be filed not later than September 30 of each even-numbered year with the clerks of the senate and house of representatives who shall refer such recommendations to the appropriate committee of the general court. Within 30 days after such filing, the committee shall hold a public hearing on the recommendations.

David Whelan :: Are Deval and the Legislature Breaking the Law?
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Like most bloggers, I'll weigh in without a speck of knowledge about the issue... (0.00 / 0)
And first wonder if the commission was created before the summer of 2001, shouldn't your headline read: "Are Jane, Mitt, Deval and Legislature breaking the law?"

Also, while I don't know the full context of the law (is there some MGL language somewhere else that negates all the shall's you bolded?  

But the real bottom line is 95% of the time a "Legislative Commission to Study (fill in the blank)" is created, it is to swept the issues under the rug, while at the same time, appease critics who want change.  This has been a tactic for ages and is equally used by both Dems and Reps around the country.  (If you lurk over at BMG, Amber Paw often posts about ignored recommendations of Commissions with regards to the court system or juvenile issues.    


"Have Bill, Paul, Jane, Mitt, Deval and the Democratically controled Legislature been breaking the law?" (0.00 / 0)
My understanding is that the referenced section of MGL was passed in the 1990s.

I also understand that there may be a legal reason why ch 70, sect 4 is "OK" to ignore. That being said, I hope sameone that understands these things better than I do will offer an explanation. I also question the intent of ch 70, sect 4.

And yes I repeated added boldface to the word shall because the word shall implies that it will be done.

No wonder lawyers get paid so much.    


The commission filed a report. (0.00 / 0)
HERE is a link to it.

No new members have been appointed to replace those who are no longer in the legislature.  Still, I don't see anything in statute here that says the commission has any obligation beyond filing its inadequate original report.

Yr. Obedient Servant, Peter Porcupine, Republican


What does the below mean? (0.00 / 0)
The commission's recommendations, together with any proposed legislation, shall be filed not later than September 30 of each even-numbered year with the clerks of the senate and house of representatives who shall refer such recommendations to the appropriate committee of the general court. Within 30 days after such filing, the committee shall hold a public hearing on the recommendations.

Does this mean the file a report every two years?


It is a choice, not a charge (0.00 / 0)
There is hereby established a foundation budget review commission to review the way in which foundation budgets are calculated and to make recommendations to the general court regarding such changes in the formula as may be appropriate.

If the commission regarded one-and-out as appropriate, well so be it.  The only requirement in the law was for four hearings to be held.

And, since Marini and Finneran aren't around to do more appointing...well, it's tough to hold meeting without a quorum.  (Yes, I know resposibility devolves onto the post, not the person - but Jones hasn't appointed, or Knapik either).

Yr. Obedient Servant, Peter Porcupine, Republican


[ Parent ]
I'm not in agreement (0.00 / 0)
How do you make changes in the formula as may be appropriate if you do not do the study every two years?  

[ Parent ]
David - they cannot make changes to the FORMULA as may be appropriate... (0.00 / 0)
...they can only make RECOMMENDATIONS regarding the same - as THEY deem APPROPRIATE.

And since most of the Legislature represents the urban areas on Ed Moskowitz's 'nice' list, and get more funding that way, why would they EVER regard making further recommendations beyond the minimum required as 'appropriate'?  When they can say they did the study, and move along, there's nothing to see here?

Jeesh - you talk as if they want to solve the problem!  My comments only address the title - are they breaking the 'law' (as passed)?  Nope.  Is their behavior appropriate?  Nope.

And the GOP caucus seems complicit.

Yr. Obedient Servant, Peter Porcupine, Republican


[ Parent ]
I've been at this a long time. (0.00 / 0)
I have spoken to Ed Moskowitz, Paul Reville, et al and understand the social engineering bullshit. Swampscott is not exactly on the "let's help out those suburban kids" list. Moskowitz is a dunce as you and your neighbors on the Cape fully understand. Frankly the Cape got screwed under this formula. The problem that most Reps and Senators have is that they DO NOT understand the formula. $4 billion of the budget and they don't understand what they are voting on! I believe that the intent of the statute (if not the statute itself) requires them to meet more than once in eight years. My guess is that my "breaking the law" intro is overkill, but I do believe that statutes do not exist without a reason. Neither the GOP or the DEMS have much interest in this issue because it is hard. So is telling a neighborhood that you are closing their elementary school.

One of your local officials from Barnstable actually asked the Governor about the formula. Note his comments at 1 min 20 seconds.

http://www.youtube.com/watch?v...

Yes he used the word "broken" to describe the formula. So what do you do about a "broken" formula? Ignore it!!


[ Parent ]
I was a supporter of RAGE...until it was hijacked to...give more money to inner city kids that the formula was hurting... (0.00 / 0)


Yr. Obedient Servant, Peter Porcupine, Republican

[ Parent ]
I was wrong on one thing (0.00 / 0)
A few GOP legislators have been helpful in sorting thru the ch 70 puzzle. Specifically Senator Tarr (Gloucester) and Rep Brad Hill (Essex). My own Rep, Lori Ehrlich, understands the issue and has been supportive, but leadership and urban legislators are in control of the education discussion.

True story. When I showed up for my first Town GOP meeting a fellow committee member asked me how a School Committee member could possibly be on a GOP Town Committee. It's almost as if you can't have conservatine fiscal views and care about public education. My frustration with public education funding relates to the ch 70 formula but I wonder how we are ever going to dig ourselves out of this mess without looking at spending. That means pensions and health insurance.  


[ Parent ]
GOP doesn't = anti-school (0.00 / 0)
I know what you mean about people thinking Republicans don't belong on a school committee.  When I first started talking with people about leaving the finance committee to run for school committee this spring, there were some who said "Republicans tend to be on the FinCom, not the school committee".

Being fiscally conservative doesn't mean we don't care about ensuring a quality education for our kids.

Marc


[ Parent ]
further.. (0.00 / 0)
The commission's recommendations, together with any proposed legislation, shall be filed not later than September 30 of each even-numbered year with the clerks of the senate and house of representatives who shall refer such recommendations to the appropriate committee of the general court. Within 30 days after such filing, the committee shall hold a public hearing on the recommendations.

Know a good lawyer?




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