There are a lot of cliches about money. “Follow the money.” “Show me the money.” “It’s all about the money.” “Money is power.” As these sayings suggest, money is often at the heart of legal, ethical and moral questions. And not in a good way, especially in the public sector.
Over the years, the pro-turf school committee members have engaged in a variety of costly financial shenanigans with taxpayer money to fund the artificial turf project and the lawsuit against Oak Bluffs. It has been my job, on behalf of the Chilmark finance committee, to follow this ongoing saga closely. And right now, the situation is worsening, and we can see dark clouds forming overhead. Islanders should be on high alert that our public high school committee is handling its fiscal duties in violation of the laws of the commonwealth of Massachusetts.
After taxpayer funding was denied to them by the towns this spring, the pro-turf school committee members pivoted fast, and began at their July 20 public meeting to fund their ongoing turf legal expenses unlawfully. At first, they tried to roll over public funds from last year’s budget to pay this year’s legal bills. Their lawyers said no.
But then, miraculously, at that same July meeting, it was announced that $5,000 had been found! The school had just received an anonymous $2,000 donation and a mostly anonymous $3,000 donation (a named person and his “friends”). The school committee, no questions asked, immediately accepted the anonymous donations “with gratitude.”
Although it was not mentioned at that meeting, several days later school officials confirmed that both anonymous donations were quietly dropped off at the high school in cash.
Yes, you heard that right. Our high school is funding their artificial turf legal bills like a drug deal. Bags of anonymous cash dropped off secretly. Twice.
And breaking news, we learned last week at the Sept. 11 MVRHS School Committee meeting that this may not be a “two-off.” Superintendent Smith stated at that meeting that the school’s lawyers orally advised him that anonymous cash gifts to a public regional school district are lawful to receive. He and the chair had talked to the lawyers on the phone, and they assured those members who had not been invited on the call that all is well. Committee member Robert Lionette asked for a written legal opinion to be provided to all members, but that idea was opposed by committee member Kris O’Brien, and it appears to have been tabled.
So it is now clear that the committee plans to spend the rest of the $5,000 in anonymous cash donations to pay their lawyer going forward. They are fine with this approach as a normal means by which our high school may pay its bills.
We the public have lots of questions: Will more money start arriving by cash drop-offs? Will the whole multimillion-dollar project be funded this way? Do one or more members of the committee know the identities of the donors, but choose not to share that information with their colleagues? Did school committee member(s) participate behind the scenes to solicit or coordinate the donations, or their manner of delivery? Have there been Open Meeting Law violations? Are school committee members themselves among the secret donors? Why are people or entities funding our controversial high school project from the shadows? Is it because they are entities that are not legally permitted to donate anonymously to public schools?
Or is it because, although among the donors permitted under the law, they are entities that Islanders would not want funding our public school projects by using their big money to drive our policy choices on controversial matters that are important to us — like protecting our drinking water?
Islanders have no answers to any of these questions.
Superintendent Smith and the school committee pro-turf advocates say, “Cash donations aren’t illegal. Public anonymity isn’t illegal.” Those things are true. But ignorance by the school committee members about the source of the funds it accepts and expends for our public high school is unlawful under the laws of the Commonwealth. It does not matter whether the school committee is buying books, or paying legal fees, or building a sports field — they cannot lawfully accept money from unknown benefactors.
Here is what the law says. Massachusetts General Law Part I, Title VII, Chapter 44, Section 53A, lists three — and only three — categories of private donors allowed to give money to regional school districts: “a charitable foundation, a private corporation, or an individual” (bit.ly/MA_law_53A).
The best reading of the language in Sec. 53A is that a “regional school district” cannot accept money from unknown persons or entities. Put simply, the school committee cannot comply with Sec. 53A, as it is expressly required to do, if it cannot confirm for all committee members that the donors are among those three categories permitted under the law — which they have not done, and cannot do, with anonymous cash donations.
What if, for example, the all-cash anonymous donor is a foreign government? Or organized crime? Or a drug cartel? Or a lobbyist for the turf industry? None of those donors is “a charitable foundation, a private corporation, or an individual,” as the law specifies.
Your school committee does not know or care who is funding our public school artificial turf legal bills — for a project that many, perhaps most, Islanders do not even want. Through our democratic processes, we cut off their taxpayer funding last spring, so they now plan to just take money from anyone and anywhere, no questions asked. They told us that clearly last week.
One may ask, does the law really say that “anonymous bags of cash” may not be accepted by our public school? Answer: Yes. When the plain language of a statute lists three permitted things, that means only those things are permitted. Everything else is prohibited. That is a basic tenet of statutory interpretation applied by state and federal courts throughout our country. Essentially, courts say: A legislature would not bother to list permitted things if other things are allowed.
Admittedly, no court has yet interpreted the statutory language of Sec. 53A to say that anonymous cash is allowed, or not allowed, to be accepted by public schools. Of course, courts cannot interpret a statute until they are asked by real parties to apply a statutory provision to an actual set of facts in the real world. We cannot find a case, and the school’s lawyers have not provided a citation to one, in which the fact pattern of “bags of anonymous cash to a public school” has come before a court in the commonwealth, or anywhere else, quite frankly.
Until now. Massachusetts General Law Chapter 44, Section 59, provides a simple process for taxpayers to enforce the chapter in court. The question now is whether a taxpayer petition in superior court will be necessary to stop this school committee from funding their artificial turf project like a drug deal.
And none of us wants more litigation.
Vicki Divoll, a Chilmark resident, is a retired lawyer who spent her career in Washington, D.C., as a national security lawyer. She also taught U.S. government and the Constitution at the U.S. Naval Academy.