Tisbury suit on school funding
The Tisbury selectmen fired a surprise opening salvo in their rebellion against the state's new statutory school funding formula, filing suit Friday in Dukes County Superior Court. The complaint named the Massachusetts board of education, acting commissioner of education Jeffrey Nellhaus, the Martha's Vineyard Regional High School (MVRHS) District, and the town of Oak Bluffs as defendants.
The defendants were served with FAXed press releases from Tisbury town administrator John Bugbee announcing the lawsuit late Friday afternoon in advance of summonses, which had not been served as of press time yesterday.
"At issue is the funding formula which recently increased Tisbury's annual assessment for the Martha's Vineyard Regional High School by nearly $200,000," Mr. Bugbee wrote in the press release. Mr. Bugbee invited other towns to join in the litigation as additional plaintiffs by contacting Tisbury town counsel David Doneski of Kopelman and Paige in Boston.
Until last year, the Island towns contributed to the cost of the regional high school on a per-pupil basis, as provided in a regional agreement in effect since 1954. In 2007, the state Department of Education (DOE) mandated that regional high school districts would be required to use a new assessment formula that takes into account each member town's aggregate wealth, based on its total equalized property value (EPV) and its total income (see related story).
Under the new formula, Oak Bluffs's assessment decreased by about $435,000, while Tisbury's increased by $241,000, yet Oak Bluffs had 213 students at the high school in the 2006-2007 school year, while Tisbury had 182.
The complaint filed with the court by Mr. Doneski is an action for a declaratory judgment. "That is a device that permits a court to clear the rights or obligations of parties with respect to a particular issue," Mr. Doneski explained in a phone call Tuesday. In this case, the issues include the application of the state's formula for determining assessments, how it is phased in, and whether Tisbury's share is equitable.
When asked about the thinking behind the lawsuit and what it might achieve, Mr. Doneski said, "I think the bottom line is to get an adjustment that reflects fairness in the contribution that the members of the district would make."
Oak Bluffs is named as a defendant in the lawsuit because the town was the first to vote to depart from the Island's regional agreement, which is the focus of the dispute, Mr. Doneski explained.
When asked this week why the selectmen decided to enter into the lawsuit, Selectman chairman Tom Pachico answered succinctly, "We had our backs against the wall."
Selectman Denys Wortman said he thought the lawsuit was a last resort, as did selectman Tristan Israel. "We feel that the whole issue is an issue of fairness, and that we have tried every other avenue for people to hear us," said Mr. Israel. "We felt that we wanted to do this to draw attention to the issue, because we feel the department of education has set up a dynamic that is unjust, and that they've created a situation that has fostered tension in a local district that was working well prior to their change."
In addition to a meeting with Sen. Robert O'Leary and Rep. Eric Turkington's aide at the State House last winter, Mr. Israel said he attempted to schedule a meeting with Gov. Deval Patrick that never came to fruition. "We feel we've reached out to everybody on Island and off Island. I've found that the response of many of the officials to be somewhat patronizing," Mr. Israel said.
The move toward legal action came at the suggestion of Tisbury finance and advisory committee (FinCom) member Bruce Lewellyn, a retired attorney. He was familiar with the school funding formula through working with FinCom member Jonathan Snyder, who has represented Tisbury in attempted negotiations about the formula with other towns, as a member of an Island-wide high school assessment committee since last spring.
"I kept in touch with Jon and the selectmen, who were very frustrated by what they felt was an unfair situation," Mr. Lewellyn said. "In the course of those conversations, I scratched my head and thought about what the town might be able to do. I suggested they consult with town counsel about the possibility of getting a review of the application of this statute in this situation. The lawsuit that you see now is the result of that inquiry."
Although the selectmen discussed the school funding issue at a meeting on Jan. 3, they gave no hint of the impending litigation. Mr. Wortman, who also serves on the high school assessment committee with Mr. Snyder, said at the meeting that Oak Bluffs FinCom chairman Thad Harshbarger had proposed using one tax rate to assess all the Island towns for school expenses, as the basis of any new regional agreement.
Mr. Wortman said he suggested that Oak Bluffs make up the difference in what the other towns had to pay, because they would still come out ahead. "I don't think a lot of people in Oak Bluffs realized it was coming out of our pockets," Mr. Pachico said.
Reactions this week to the lawsuit ranged from surprise to puzzlement. Superintendent of schools James Weiss said he had no advance notice about the lawsuit and learned about it at 4:30 pm last Friday, when his office received Mr. Bugbee's faxed press release. Mr. Weiss sent an e-mail on Monday morning informing school committee members and school principals about the lawsuit. The high school committee will discuss a course of action in executive session on Jan. 14, he concluded.
In Oak Bluffs, town administrator Michael Dutton said that although Mr. Bugbee gave him some advance warning about the lawsuit it came as a surprise to him that Oak Bluffs was named as a defendant. "It's not as if we came up with the formula," he pointed out.
Oak Bluffs FinCom members Peter Palches and Mr. Harshbarger, who serves as the chairman, have been involved in discussions over the past several months with the regional high school assessment committee. Mr. Palches said although he told Mr. Snyder and Mr. Wortman that he thought Tisbury had the basis for a complaint, he did not know what the reasoning was behind naming Oak Bluffs as a defendant.
"I don't feel any rancor toward Tisbury for raising a legal issue that I think they should have raised," Mr. Harshbarger said.
Mr. Pachico said most of the selectmen's decision-making over whether to pursue legal action was done in executive session, although they had advice from some finance committee members. Mr. Wortman recalled the selectmen discussing the possibility of initiating a lawsuit about two months ago. "Sometimes you've got to do something to force an issue," he said. "I don't think there's one of us that is a litigious person, that just wants to go out and start throwing out lawsuits."
The latest lawsuit, however, follows close on the heels of another filed by the selectmen in Superior Court in October 2007 against the Tisbury water commissioners, Tisbury water works superintendent Deacon Perrotta, administrator Lois Norton, and the Oak Bluffs Water District, regarding employee contracts and issues relating to water works funds and accounting practices. A hearing on the case has not been scheduled yet.
So far, legal expenses in the water works lawsuit have been minimal, according to town accountant Suzanne Kennedy. The selectmen have about $51,550 remaining out of $75,000 in their FY08 budget for legal expenses, she said.
When asked about the costs of the new lawsuit, the selectmen said that although they don't know what it will amount to, they do not intend to spend a lot of money on it.
"I don't know how far this is going to go - the judge could throw it out at the first hearing," Mr. Israel said. "If we spend a modest amount of money to try and at least highlight the inequities in the system and perhaps get a change at a judge looking at this, then we think it's money well worth being spent."
Mr. Doneski said that at this point the cost of filing is a small amount. As for the potential cost to taxpayers, he said, "It's unknown at this point."
"We're not looking to spend $600,000 to get back $240,000," Mr. Pachico said. "We can't take it lying down, either."
Ultimately, however, the lawsuit puts the bite on Tisbury and Oak Bluffs taxpayers twice, as they will be paying their towns' legal expenses, as well as a portion of the regional high school district's legal expenses.
"In a way, it's sort of a little like the airport and county commissioners' suit," said Mr. Dutton. "I absolutely can understand the Tisbury selectmen's frustration and distress with the state's funding mechanism, but they should dispute that with the state."
Although the Tisbury selectmen were optimistic about the lawsuit being short-lived, Mr. Dutton, who is also an attorney, was not so sure. "This is one of those cases that will go to the [state] Supreme Court, if the parties choose to litigate it out that long," he said. "If they're really trying to correct a flaw in the formula's mechanism, then why on earth would they file a complaint that they won't have an answer about for years?" Furthermore, he questioned, if courts dictate the funding formulas, how willing will the courts be to say they are wrong?
Mr. Doneski said on Tuesday he expected the defendants in the case to be served summonses soon. The next step will be for the defendants to answer the complaint, and then, "Anything could happen," Mr. Doneski said.
In terms of the lawsuit's impact on town finances, Mr. Bugbee said, "We're not holding out hope we're going to get any monetary gains from this in terms of next year's budget."