The maven is throwing in the towel! I have spent far too
much time on this, both last spring and this fall, and it just doesn’t get any
better. This whole problem was caused by the Virginia General Assembly. Why
should I be the one who has to bail them out?
So I am going to put all my research out there and any of
you readers is welcome to come up with a reasonable solution. For any of you
who can do it, I will be glad to award my virtual “You’re Obviously a Better
Lawyer than Me” medal, which you can wear or frame and hang over your desk.
What is this all about? It’s about what rules should the
school board, the mayor and the city council follow in formulating the annual
budget for Richmond Public Schools.
For those of you who are old-time maven fans you know that
since 2008 I have been criticizing the Richmond School Board for preparing
budgets each year that were not based on the needs of the school system but
rather on the wishes of Richmond’s mayor and city council. I pointed out that
all three players in the school budget game were either unaware of, or were
choosing to ignore, the requirement of state law that school budgets be based
on an “estimate of the amount of money deemed to
be needed during the next fiscal year for the support of the public schools
of the school division.” (Virginia Code section 22.1-92, my emphasis). I have
pointed out that the way the school budget has been handled in Richmond over
recent years has resulted in the City of Richmond providing a constantly lower
percentage of its operating budget for schools each year, a percentage that is
lower than that of other jurisdictions in Virginia.
But last spring, when I started looking at the controlling
statutes again, I discovered that the school board, the mayor and the city council
were looking at totally different provisions of law than the maven was. I was
looking at Title 22.1 of the Virginia Code entitled “Education.” The board,
mayor and council were looking at Chapter 6 of the Richmond City Charter,
entitled Budget. Trust me, reader; these sets of law are significantly
different.
State
Law:
All of Title 22.1 of the Virginia Code,
including Chapter 8 on Public School Funds, was enacted in furtherance of the
General Assembly’s responsibility under Article VIII, Section 1, of the
Virginia Constitution, which reads:
The General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth, and shall seek to ensure that an educational program of high quality is established and continually maintained.
The General Assembly created school districts and school boards as entities of the state, rather than agencies of local governmental units. The provisions controlling school boards are contained in Title 22.1, chapter 5 of the Virginia Code. The General Assembly intended that school budgets and school funds be treated separately from the funding for local government. The laws governing school funding are contained in an entirely separate chapter of the code from those covering local government funding, which are contained in Title 15.2, chapter 25 of the Code.
Chapter
8 of Title 22.1 of the Virginia Code is entitled “Public School Funds.” The key
provisions of that chapter with regard to annual school budgets are sections
92, 93 and 94. Section 22.1-92 reads:
A. It shall be
the duty of each division superintendent to prepare, with the approval of the
school board, and submit to the governing body or bodies appropriating funds
for the school division, by [April 1] the estimate of the amount of money
deemed to be needed during the next fiscal year for the support of the public
schools of the school division. The estimate shall set up the amount of money
deemed to be needed for each major classification prescribed by the Board of
Education and such other headings or items as may be necessary.
* * *.
B. Before any
school board gives final approval to its budget for submission to the governing
body, the school board shall hold at least one public hearing to receive the
views of citizens within the school division. A school board shall cause public
notice to be given at least 10 days prior to any hearing by publication in a
newspaper having a general circulation within the school division. . .
Section
22.1-93 provides:
Notwithstanding any other provision of
law . . . the governing body of a municipality shall prepare and approve an
annual budget for educational purposes by May fifteen or within thirty days of
the receipt by the municipality of the estimates of state funds, whichever
shall later occur. Upon approval, each local school division shall publish the
approved annual budget, including the estimated required local match, on the
division's website, and the document shall also be made available in hard copy
as needed to citizens for inspection.
Section 22.1-94 states:
A governing body may make appropriations
to a school board from the funds derived from local levies and from any other
funds available, for operation, capital outlay and debt service in the public
schools. . . .The appropriations may be made on the same periodic basis as the
governing body makes appropriations to other departments and agencies.
Sections 92 and 93 were reenacted by the General Assembly as
recently as 2011.
In sum, these provisions require:
1- That the Superintendent of Schools, with the approval of
the school board, submit to the local governing body—in Richmond, this would be
the City Council—no later than April 1 of each year an estimate of the amount
of funds that will be necessary to operate the public schools in the upcoming
year. This estimate shall use the classifications established by the state
Board of Education. These classifications are (i) instruction, (ii)
administration, attendance and health, (iii) pupil transportation, (iv)
operation and maintenance, (v) school food services and other noninstructional
operations, (vi) facilities, (vii) debt and fund transfers, (viii) technology,
and (ix) contingency reserves. (Virginia Code section 22.1-115)
2- That before adopting its budget, the school board shall
hold at least one public meeting and that it shall give ten days notice before
that meeting.
3- That the local governing body—in Richmond, the City
Council—shall prepare and approve an annual budget for educational purposes by
May 15 (or within 30 days of receiving an estimate of state funds that the
school district will receive in the following school year.)
4- That the local governing body may appropriate local funds
to the school board (to supplement funds received from the state) for
operation, capital outlay and debt service of the school district.
(The only strange requirement in this legislative scheme for
public school budgeting is the second one. As indicated in the quote above,
section 22.1-92(B) requires the school board to hold a public meeting before
approving its budget, but the statute nowhere requires the school board to
prepare a budget.)
City Charter:
In enacting the Richmond City Charter, the General Assembly
appears to treat the school board as a special entity within the city
government. Section 20.01 of the Charter provides:
The School Board shall consist of nine
trustees [sic]. One trustee shall be elected from each of the nine Council
districts and shall be a qualified voter of that district.
The time of election and terms of members
of the School Board shall be the same as the time of election and terms of the
members of the Council.
Trustees shall take office July 1 following
their election.
Except as provided in this Charter the
School Board shall have all the powers and duties relating to the management
and control of the public schools of the City provided by the general laws of
the Commonwealth. None of the provisions of this Charter shall be interpreted
to refer to or include the School Board unless the intention so to do is
expressly stated or is clearly apparent from the context.
The laws respecting the preparation and approval of budgets
in the City of Richmond are contained in Chapter 6 of the Charter. Section 6.02
provides:
On a day to be fixed by the
council, but in no case earlier than the second Monday of February or later
than the seventh day of April in each year, the mayor shall submit to the
council: (a) separate current expense budgets for the general operation of the
city government, for the public schools and for each utility as defined in
Chapter 13 of this charter; (b) a budget message; and (c) a capital budget.
Section 6.03 states:
It shall be the duty of the
head of . . . each board or commission, including the school board . . . to
provide, at such time as the mayor may prescribe, estimates of revenue and
expenditure for that . . . board. . . for the ensuing fiscal year. Such estimates shall be submitted in a form as
determined by the mayor. . . . The mayor shall . . . make such revisions in
such estimates as he/she may deem proper, subject to the laws of the
Commonwealth relating to obligatory expenditures for any purpose, except that
in the case of the school board, he/she may recommend a revision only as
permitted by § 22.1-94 of the Code of Virginia or any other provision of
general law not in conflict with this charter.
Section 6.05 provides:
For any fund, the total of
proposed expenditures shall not exceed the total of estimated income plus
carried forward fund balance.
Section 6.09 provides:
A public hearing on the budget plan as a
whole shall be held by the Council within the time and after the notice
provided for hearings on ordinances by Section 4.10 of this Charter, except
that the notice of such hearing shall be printed in a newspaper published or in
general circulation in the City.
Not later than the thirty-first day of May in
each year the council shall adopt the budget, the appropriation ordinances and
such ordinances providing for additional revenue as may be necessary to put the
budget in balance.
And, section 6.14 provides:
It shall be the duty of the school board to
submit its budget estimates to the mayor at the same time as other departments
and in the form prescribed by the mayor. The mayor and council may take any
action on the school budget permitted by § 22.1-94 of the Code of Virginia or
any other provision of general law not in conflict with this charter. The
school board shall before the beginning of the fiscal year file with the
director of finance its budget as finally revised and its appropriations based
thereon.
In sum, these provisions of the city charter provide:
1- That the School Board [section 6.14] (or
the head of the School Board [section 603]) submits to the Mayor budget
estimates [section 6.14] (or estimates of revenues and expenditures [section
6.3) in the form and at the time required by the Mayor.2- That the total of proposed expenditures for any fund shall not exceed the estimated expected income plus any balance carried forward.
3- That the mayor may make changes in the
school board estimates consistent with state law.
4- That, by a date specified by the City
Council, the Mayor shall submit separate current expense budgets for the city
government and for the public schools.
5- That the City Council holds a public
hearing on the “budget plan.”
6- That the City Council shall adopt the
budget and any ordinances necessary to balance it by the end of May.
Side by side:
Comparing the state and city provisions
reveals several inconsistencies. Some of these inconsistencies only relate to
the date things need to be done. The substantive ones are:
1- The state law requires the submission to
the governing body of the local jurisdiction of an estimate of the needs of the
school system. The city code has no such provision.
2- The state law requires the use of
classifications established by the state Board of Education. The city code
requires that budget statements be in the form specified by the mayor.
3- The state law provides that the school
board’s budget be submitted directly to the governing body. The city code
provides that the school board’s budget be submitted first to the mayor who may
make changes before submitting it to the City Council.
4- The state law requires the governing body
to prepare
and approve an annual budget for educational purposes. The city charter
requires the Mayor to submit to the City Council a separate budget for public
schools. However, the charter indicates that the council is to adopt a single
budget for the city including the public schools.
Both the Virginia Code provisions and the
city charter provisions were enacted by the Virginia General Assembly. And yet,
they are in conflict. So, what do we do about these conflicts?
When a court has to apply two statutes that
appear on their surface to be contradictory, it relies on a “legal fiction.”
That fiction assumes that in enacting new legislation the legislature is fully
aware of all other laws it has ever enacted and intends the new legislation to
be compatible with those laws. In other words, the law does not favor implied
repeals. It is only when the court finds that it cannot give both statutes full
effect that it relies on one of two principals of statutory interpretation:
1- Later in time prevails: The assumption
is that the legislature intended its most recent pronouncement to be
controlling;
2- Specific controls over general: The
assumption is that the legislature intended its more specific pronouncement to
be an exception to the general statute.
This approach, however, makes no sense in the current
instance. Merely, choosing which of the conflicting statutes should control
will not resolve the basic problem. Does the General Assembly want the Richmond
School Board to operate as other school boards in the Commonwealth, that is, as
an instrumentality of the state that also receives funding from the City of
Richmond; or does the General Assembly want the school board (for budget
formulation purposes) to be an entity of the City of Richmond that also
receives funding from the Commonwealth?
So, the maven has to abdicate his responsibility on this
issue. I strongly recommend that the Richmond School Board and/or the City
Council and/or the Mayor take this issue back to the General Assembly for
resolution. I also recommend that our local senators and delegates make sure
this issue is resolved when the General Assembly reconvenes in 2014.
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