[S]everal lawmakers are threatening the secretary of the Agency of Education with a lawsuit if she doesn’t deliver a study mandated by state statute. They say the secretary can’t pick and choose which laws to implement.
In an Aug. 3 letter to lawmakers, Secretary of Education Rebecca Holcombe said the Agency of Education didn’t have the capacity to initiate or complete a study of the way students are counted. Instead of using a simple average daily count, Vermont weights certain students, who are low income or in special education programs, as part of an equalized funding formula that is used to determine how much money should be sent to school districts.
The study is authorized as part of Act 49, a law that amended the school district merger law, Act 46. It was expected to be completed by Dec. 15. Holcombe told lawmakers she couldn’t complete the study until the agency has more resources.
In a terse letter, Reps. Laura Sibilia, I-Dover, John Gannon, D-Wilmington, and Ben Jickling, I-Randolph, threaten to sue Holcombe if she doesn’t adhere to the law.
“Recent conversations with Vermont Legislative Counsel have confirmed that seeking enforcement action through the courts is appropriate,” they wrote.
When the Legislature passes a bill and the governor signs it into law, a secretary can’t opt out, according to Sibilia.
“As much respect as I have for Secretary Holcombe, I don’t think she gets to make that decision alone,” Sibilia said. When an agency flouts the law, the power of the Legislature is diluted, she said.
Sibilia said in a letter to constituents that she and other lawmakers have been pushing for the study because they believe that “the current system unfairly harms rural districts with small population densities.”
Sen. Philip Baruth, D/P-Chittenden, said it’s unfortunate a lawsuit is on the table. “It shouldn’t work that way in Vermont. We should be talking to each other and working it out rather than having one branch squaring off against another one,” Baruth said.
Baruth, who chairs the education committee, said he was surprised by the very public and blunt way Holcombe chose to defy the law. But, the issue is between Gov. Phil Scott and Holcombe, not with the Legislature, according to Baruth.
“Scott signed it into law and then he didn’t give her more people, as far as I’m concerned she is at war with her own executive leadership,” he said.
But the Scott administration doesn’t see it that way. Rebecca Kelley, the governor’s spokesperson, argues that lawmakers could have appropriated more money for the agency or eliminated other mandates to free up education agency staff.
Scott didn’t want to tank an omnibus bill important to the education community over a study, Kelley said.
“When legislative mandates are not funded, the executive branch must be able to prioritize where to deploy limited resources and taxpayer dollars,” Kelley said. “Holcombe has communicated that the agency will perform the study as staff and resources become available.”
Speaker of the House Mitzi Johnson, D-Grand Isle, said the governor could use the Budget Adjustment Act to give the agency more money. Johnson said the student weighting study is important because lawmakers want to find a way to give Vermonters property tax relief. “This information is critical so we can address property taxes.”
The education funding formula weighs students differently based on whether they are pre-K, special education, English learners or low income and this impacts how much money districts get. Because it costs more to educate some of these special populations, the students are given more weight when they are counted.
Sibilia has been trying to get a study of how Vermont does this and perhaps of better ways to do it for years. She would like to see students in rural schools weighted differently than counterparts in more urban areas. “Should it cost more to educate students in a rural school than it does in a more densely populated school?” she asked, adding, “This study would have looked at all the weights to see if they needed to be adjusted or if they were appropriate.”
The three lawmakers didn’t buy Holcombe’s argument that AOE can’t do the study because of a lack of resources. They say the agency requires school districts to fulfill unfunded mandates every year without any additional money or manpower.
“We could discuss how unadvisable we believe it is to try and restructure Vermont’s entire education governance system without proper human and research resources,” the letter states.
During the legislative session Holcombe repeatedly told lawmakers in committee hearings that AOE didn’t have the staff or resources to perform the study. Four memos written while lawmakers were considering the study said the agency could not take on the work.
“If you assign us the weighting study we will not be able to do it,” Holcombe wrote to the chairs of the education committees on May 3.
She continued to tell lawmakers this after Act 49 was signed into law, culminating in letters to the heads of the education committees in August.
“The legislation was enacted in spite of our expressed lack of capacity to undertake another major study, especially given the other substantial work related to Act 46, questions about the funding formula and ongoing work associated with PreK and a special education study. All of this is occurring against a backdrop of tougher budget challenges and all of these projects have to be supported by Brad James,” Holcombe wrote to Baruth on Aug. 24. James is the education finance manager at the agency.
Holcombe’s argument didn’t make a lot of sense to Baruth. “It seemed to be that since she told us before we passed the law she didn’t like it and given we knew she didn’t like it we should not have passed the law and we shouldn’t expect her to carry it out,” he said.
But Scott decided to sign Act 49 knowing the agency didn’t have enough people to carry out the mandates in the legislation, Baruth said. “He can’t continue to cut and give his own agency more work,” he said. “If she loses the fight with her boss and supports what he wants and then takes it out on the law by picking what things to enforce,” she is begging for a lawsuit, he said.
The Scott administration asked lawmakers to show some compassion for AOE. “We believe the Legislature needs to be more understanding of the capacity restraints and the impact of studies when they are not funded,” said Kelley.
The Legislature may need to adjust the timeline or eliminate other work for the agency, Kelley said.
Baruth said that’s tantamount to saying “his own secretary should ignore his own act” and defies the Constitution.
