How does local educational policy “align with State law” and how does State law “align with the Maine Constitution?
Photo by Call Me Fred on Unsplash
The Maine Municipal Home Rule Referendum, also known as Proposed Constitutional Amendment No. 3, was on the November 4, 1969 ballot in Maine as a legislatively referred constitutional amendment, where it was approved.
Home Rule authorizes the municipality to construct buildings to be leased or sold to a “responsible corporation” (a corporation for running and financing business operations,) - with a majority vote.
Home Rule Section 2. Construction of buildings for industrial use. For the purposes of fostering, encouraging and assisting the physical location, settlement and resettlement of industrial and manufacturing enterprises within the physical boundaries of any municipality, the registered voters of that municipality may, by majority vote, authorize the issuance of notes or bonds in the name of the municipality for the purpose of purchasing land and interests therein or constructing buildings for industrial use, to be leased or sold by the municipality to any responsible industrial firm or corporation. (emphasis by author)
In 1976 The Governor’s Task Force for Economic Redevelopment, Recommended Legislation for an Economic Development Program -110th Congress, called for the elimination of local referendums on municipal bond issues with precise language:
2: eliminate the requirement for a local referendum on municipal bond issues.
No one I know about questioned the ambition to overrule the Maine Constitution and so began the long incremental process of overwriting Constitutional Home Rule with statutory law and enacting funding methods to replace the municipal referendum. Along the way, our municipal and legislative leaders came to believe that they are a law unto themselves, accountable to no higher authority, or so it seems.
On June 12, 2024 the rejected petitioners of the Boothbay Peninsula filed a lawsuit against the Boothbay School District Alternative Organizational Structure (AOS) 98 source
Superintendent Kahler responded as the Board had responded previously, in the manner of a court making a ruling:
“Alternative Organizational Structure (AOS) 98 Superintendent Robert Kahler said the lawsuit isn’t presenting new arguments. He said the Board of Trustees has already been asked to consider and reconsider the renovation project.
“It’s the same argument. It’s just in a different forum,” he said. However, he added, “It’s part of the process, and people have the right to explore different avenues to be heard.”
Inadvertently Superintendent Kahler admitted that the April 24th referendum was a reconsideration referendum. What else could be the meaning of “consider” (the Nov vote) and “reconsider” the renovation project? There have been only two referendums on the project. The school board refused to honor the petition from the voters to run a reconsideration vote on the April 24th reconsideration vote. Once is enough. The Board got what it wanted with its own reconsideration referendum. No more votes!
Superintendent Kahler limits his response to generalities, never specifically identifying what he is talking about. It’s the same “argument” in a different” forum”. The “argument ” isn’t the same. It is a specific response to the Board’s decision, not to run a reconsideration vote despite the citizen’s petition. The new “forum” is the real court where the School Board is a litigant and not the judge, but Superintend Kahler can’t seem to reposition himself away from the role of autocrat.
The Register reports that The petitioner’s lawyer, Attorney Kristin Collins, sent a letter to Superintendent Kahler two days before filing the lawsuit. The letter addressed the argument made by the School Board that it is not required to run a reconsideration vote as required 20-A M.R.S. § 1504 in response to a citizen’s petition:
In a June 10 letter to Kahler, Collins requested the trustees reconsider their decision. She argued her clients’ rights were violated by the board in denying the petition based on “a misapplication of state petition requirements” and “an unsupported conclusion” that the petition’s second article justified the refusal of the petition.
Superintendent Kahler acknowledged that “people can explore different avenues to be heard”. It was not a promising response to the petitioner’s lawyer’s sentiment expressed at the end of the Boothbay Register article:
“The petitioners believe the CSD Board had no legal basis to refuse the petitions, and feel a court will ultimately agree,” Collins said. “But more importantly, they hope the CSD Trustees will reconsider and find taking this issue back before the voters to be more sensible than digging into litigation.”
Paul Coulombe was the first to respond to the Boothbay Register article mustering up his best Donald Trump imitation by calling the petitioner’s pathetic. I responded by adding another item to the list of what 20-A M.R.S. § 1504 “doesn’t authorize”:(The argument used by the Board to reject the petition’s legal outcome):
It is unclear what Mr. Kahler means by argument since the petition is just a call to action and the lawsuit moves the forum into court where arguments are presented.
Kahler said the district will move forward by having their lawyers review the lawsuit and strategize the next steps. In the meantime, he said the suit will not have much effect on the renovation project because it is in a high-level organizational planning phase. And he said the district still has donated funds they can apply, which gives them leeway.
So Despite the lawsuit challenging the approval of a public bond, Mr Kahler says they intend to move ahead with plans using private money.
There might be a problem with that. The legal definition of a public school
A public school is an institution of learning and education, especially for children. It is established under state law, regulated by local state authorities, funded and maintained by public taxation, and open and free to all children of the particular district where the school is located. Public schools are also known as common schools. LSD Law
Definitions vary but a common theme is that public schools are funded by public money US Legal Defonition
Another problem is that the terms of agreement with the private funders are that the municipality will honor and fund their conditions until the end of time. The lawsuit throws negotiations into question and/or raises the interpretational issue, can the state create a law that says private investors can fund a private school or any project and wherever it is located the municipal inhabitants are required to honor the conditions in the terms of agreement made between a power elite and the funders and to fund those conditions forever? What part of the Maine or US Constitution supports that the public can be made slaves to private interests? Whose interests was the Maine Legislature serving in enacting §5654. Conditional gifts?
The whole thing sounds like someone’s brilliant idea of innovating corporate welfare so that property taxes can be used as subsidization funding. Considering that since the State started centrally managing the economy in the seventies the wealth divide has expanded and the middle class has shrunk, this is an ill-conceived idea. Why not just call it centrally-damaging the economy being that it has resulted in a missing middle to the economy?
The school boards and the funders control the spending pursuant to §5654. Conditional gifts and we already see they think there is no limit to what they can require of the taxpayers, who have no say in the negotiations that require municipal taxpayers to fund any amount, forever. . One can argue it is the constitutional intent of Home Rule that the inhabitants of the municipality have a voice in spending that they are required to fund.
Maine has been run by public-private relationships for so long that our leaders do not seem to know how to distinguish between public and private. Private interests write our laws and public interests operate business using subsidies and public resources.
Some of the Laws governing our educational system are unrecognizable as public education. Innovative, autonomous public schools reads like a private school, as it declares that innovative autonomous public schools are not intended to target a local population:
§6212.1. Open enrollment. Any resident student in a school administrative unit is eligible to request enrollment in an innovative, autonomous public school. Enrollment may not be limited to a target population of students. A school board shall establish a method for selecting students when requests for enrollment exceed capacity. A school board may establish a process for determining the maximum enrollment from each municipality in the school administrative unit.
If an innovative autonomous public school is funded by §5654. Conditional gifts, the local municipality will be required to honor and fund the conditions made by the “donors” in perpetuity, and have no say in what those conditions are, leaving the municipalities to rely on good faith that the local boards will treat the public fairly, but nothing in this law treats the public fairly, and neither is Boothbay’s school board doing so in its choice to use §5654. Conditional gifts, and its rejection of the legal rules governing reconsideration referendums.
§5654. Conditional gifts
This section governs a municipality’s receipt of a conditional gift for any specified public purpose. [PL 1987, c. 737, Pt. A, §2 (NEW); PL 1987, c. 737, Pt. C, §106 (NEW); PL 1989, c. 6 (AMD); PL 1989, c. 9, §2 (AMD); PL 1989, c. 104, Pt. C, §§8, 10 (AMD).]
1. Acceptance or rejection. When the municipal officers receive written notice from a prospective donor or a representative of the proposed gift, they shall submit the matter at the next meeting of the municipal legislative body. Within 10 days after the meeting, the municipal officers shall send written notice of their acceptance or rejection to the donor or the donor’s representative.
[PL 1987, c. 737, Pt. A, §2 (NEW); PL 1987, c. 737, Pt. C, §106 (NEW); PL 1989, c. 6 (AMD); PL 1989, c. 9, §2 (AMD); PL 1989, c. 104, Pt. C, §§8, 10 (AMD).]
2. Perpetually comply with conditions. When the donor or the donor’s representative has completed the donor’s part of the agreement concerning the execution of a conditional gift, the municipality shall perpetually comply with, and may raise money to carry into effect, the conditions upon which the agreement was made.
Who ever heard of a “forever” law in which it is written that it can never be repealed? How can that be constitutional except that former lawmakers never considered that such a condition could be written into a law and so never thought of prohibiting it.
The donors have unrestricted authority to design the school to their specifications with local leadership’s approval. The inhabitants of the community’s only role is to obey and finance in perpetuity the plans devised by th private transactional donors, and so the inhabitants of the community must trust local leadership to do right by them if they approve public funding of the school.
Local Leadership recently threw out decades of work by the local municipality on its school charter and replaced it with the words “aligned with state law”. Their reason was that the charter was 20 pages long and had as many sections. During the “repeal and replace” process there was never a discussion about what is in either the original charter or state law. The boards deplored the local school charter for being long and having many sections but, apparently, they did not check to see that Sta te Law is longer and has more sections
See Title 20: EDUCATION and Title 20-A: EDUCATION
The prior CSD charter was about 20 pages, with nearly as many sections. Kahler and Stover said it had archaic language and referred to outdated concepts such as coupon bonds, which no longer exist. The charter now states it follows certain laws, which limits the need for further amendments even if those laws get revised, according to Kahler. The end result is a two-page document with nine sections. CSD charter replaced
So were “coupon bonds” also a forever law that can never be repealed without repealing the entire school charter representing decades of thought by previous generations?
And does Kahler not realize that the school Charter now includes the entire body of State law so it is not only two pages long?
Good Job School Boards! You made the local charter simple by throwing out our Home Rule authority and aligning our charter with state law, which is incredibly more complex than the local charter that you just demolished! What kind of analytical standards and work habits are you teaching the students?
Just to say, the local power elite repeatedly refuses to allow me to have any involvement in my local government policy but I have been reading the state laws for over fifteen years.
It didn’t take long to realize that there is a forest hidden in the trees. All the sections are interrelated so one has to consider the relationship between all of the sections to understand the design hidden in the compartmentalization of individual statutes. The relationship between 5654. Conditional gifts and Innovative, autonomous public schools is one such example. Title 30-A 5654. Conditional gifts is in the section governing municipalities that states “This section governs a municipality’s receipt of a conditional gift for any specified public purpose.”, so it applies to the educational statute whether specifically stated or not.
The relevant section in The Educational Statutes is section 1705 of Title 20-A, which does not identify the terms of accepting a conditional gift as clearly as Title 30-A 5654. Conditional gifts. To the undiscerning eye, or one that is incognizant of all the sections and how the sections affect other sections, 1705 of Title 20-A appears more innocent, especially if the reader does not bother to check out the link referencing Title 30‑A, chapter 223, subchapter III‑A, and even I do not know what that is as I cannot locate a subchapter III‑A in Title 30‑A, chapter 223, and so I have to assume that Subchapter 3-A: MUNICIPAL INVESTMENTS is intended.
Subchapter 3-A has sections pertaining to stock investments, begging the question are the Minutes for BOOTHBAY-BOOTHBAY HARBOR CSD JOINT MEETING OF THE CSD BOARD OF DIRECTORS AND THE CSD BOARD OF TRUSTEES MINUTES 5:15 p.m. Wednesday, August 25, 2021 BRHS Library, saying that the board is authorized to accept gifts and donations as stock investments in our “public” schools. That is just a question. I have not read all those sections, yet.
Being that the board tossed out our previous school charter because it was too long and had too many sections, I suspect they did not read all those sections, leaving the question, who put those sections in the Minutes of the board vote? And why is Subchapter 3-A: MUNICIPAL INVESTMENTS written as subchapter III‑A in the Minutes for the meeting? Subchapter 3-A implies that the school is a for-profit institution.
When I sent an unofficial request asking about how the US and Maine Constitution are being taught in elementary and secondary school, and the identity of the instructors, the answer was the boards would look into it. Imagine if I had asked about advanced math and the identity of the instructors and the answer was “We will look into it”.
I didn’t mention the state law that requires both Constitutions to be taught along with African American studies, Native American Studies, and the history of genocides.
I have never heard about the subjects identified in §4706 being taught in our local school system. The answer given to my unofficial request confirms my suspicion that this law is being ignored. All the while our local leadership is telling us that they must be compliant with LD2003-HP1489 where the State transfers Home Rule authority over municipal ordinances and community character from municipalities to itself and is now trying to administer a monotonous housing grid over the entire state of Maine with no consideration for such things as the limitations of water supplies., which have been stretched to the limit for years on the Boothbay Peninsula in the interest of economic development.
So we must ask what are the investments that Subchapter 3-A: MUNICIPAL INVESTMENTS governs as applied to “the project”? Will it be something along the line of patents as it is at the University of Maine. Scroll down to the end of Statement of Policy Governing Patents and Copyrights Statement of Policy Governing Patents and Copyrights University of Maine System and you will find this:
The following text is the result of negotiations between AFUM and the University of Maine System and is to be included in the February 2, 2002 policy documents entitled: “Statement of Policy Governing Patents and Copyrights .” It is to be included in Section VII Disposition of Income and is to be inserted as a new third paragraph to that section.
You can ignore the above paragraph as did the authors of Statement of Policy Governing Patents and Copyrights Statement of Policy Governing Patents and Copyrights University of Maine System, The following paragraphs were not inserted into Section VII Disposition of Income. The only mention of that section is in the quote above, found at the end of the document:
It is hereby agreed that: For the first $100,000 of cumulative net income the default minimum distribution shall be as follows:
50% to the faculty creator / inventor
50% to the University
For cumulative net income in excess of $100,000 the default minimum distribution shall be as follows:
50% to the faculty creator / inventor
50% to the University
The above distributions shall serve as a general guideline or minimum default distribution of income, nothing precludes or prevents individual agreements being arrived at by members of the faculty and the University which exceed (exceed 100%!) the distribution plan outlined above. (emphasis and comment added by author)
In the event that an individual agreement is executed, AFUM, as the exclusive bargaining representative, shall receive a copy of such agreement. Any disputes which might arise under this policy, including disputes concerning the determination of what constitutes net income, shall be submitted to the University Intellectual Property Committee for final and binding resolution.
You can submit a dispute but the dispute will be decided by a party with a vested interest in its outcome!
So being that the Maine Legislature saw no reason to limit the donors of conditional gifts, such donors can also make claims of the ownership of intellectual property of any projects taking place in publicly subsidized school facilities. Anything goes for the investors and the people must obey and fund the donor’s conditions. That’s the way the Maine Legislature wrote the law.
To take back our constitutional rights, the people must use the rule of law. I am grateful to petitioners Patricia Minerich, James and Virginia Farrin, Daniel Zajdel, Roy Tholl, Elizabeth Grant, Steven Carbone and Pamela Mancusco for following legal course of due action against the School District.
The students at the University of Maine recently sued for the right to unionize and won. They argued that their research was the basis for awards being given to The University of Maine, but the suit does not address intellectual property rights.
1,000 UMAINE GRADUATE WORKERS WIN THEIR UNION
As did students at the University of Minnesotta
Universities are acting no differently than corporations, underpaying workers while claiming ownership of any project taking place within the publicly funded facilities. We need other solutions to facilities where creators can develop ideas. If schools are going to function in a manner indistinguishable from private corporations, then the purpose of a public school system has been innovated out of existence.
We need more lawsuits, particularly ones targeting the overriding of the Maine Constitution by Maine statutory law, especially the Home Rule Amendment and Article IV Part Third, Sections 13 & 14 of the Maine Constitution.
Imagine if the centrally managed economy had never happened and Maine was governed the way our Constitution says it is to be governed. What would Maine look like now? Would it have an abundant middle class as it once did before the state intervened? New Hampshire can give us a clue because New Hampshire does not have a centralized economy. New Hampshire is not a Home Rule State but in practice, because New Hampshire does not have a centralized economy it is more of a Home Rule state than Maine. New Hampshire always beats Maine in state-to-state economic comparisons.
Afternote added on June 20
Yesterday I wrote
“to check out the link referencing Title 30‑A, chapter 223, subchapter III‑A, and even I do not know what that is as I cannot locate a subchapter III‑A in Title 30‑A, chapter 223, and so I have to assume that Subchapter 3-A: MUNICIPAL INVESTMENTS is intended.
Subchapter 3-A has sections pertaining to stock investments, begging the question are the Minutes for BOOTHBAY-BOOTHBAY HARBOR CSD JOINT MEETING OF THE CSD BOARD OF DIRECTORS AND THE CSD BOARD OF TRUSTEES MINUTES 5:15 p.m. Wednesday, August 25, 2021 BRHS Library, saying that the board is authorized to accept gifts and donations as stock investments in our “public” schools. That is just a question. I have not read all those sections, yet.
The reason I had not read those sections yet is because I did not recall noticing that Subchapter subchapter III‑A was identified. I thought it odd that I had missed it but assumed it to be my mistake.
Today I am not so sure it was my mistake as when I looked again today, it appeared to state what I thought it had stated all along and as I quoted in my original blog post on the FOAA request.
Mr. Kaher acknowledges that he is not providing complete documentation as he provides documentation that mentions that funding includes Section 1705 of Title 20-A which stipulates the authority to accept conditional gifts which are defined in a multitude of statutes for a multitude of reasons and in a multitude of ways. My original p[ost on FOAA request
So where did I get the idea yesterday that the Minutes said “Title 30‑A, chapter 223, subchapter III‑A,”? That is what I saw yesterday! Today It says the same thing I had always thought it said before and why I never read that section previously.
I cannot explain this but I can say that such changing information is not inconsistent with my experience of interacting with government records published online, including that the links in my newsletter posts are frequently becoming dysfunctional after the fact of posting working links.
I don’t know why I saw “Title 30‑A, chapter 223, subchapter III‑A,” listed in the Minutes yesterday and never saw it before and now it is not there.
But with this note added, I am leaving my post as I wrote it yesterday.
