MONTPELIER – A proposed amendment to H. 39, the Vermont House of Representatives’ partial Act 46 delay bill, could possibly extend that delay most of the mergers ordered under the state’s consolidation law so long as districts take the first steps toward their respective mergers.

That amendment, recommended by the Senate Committee on Education, would permit a merged district’s elected school board to determine whether the new district’s operating date would be July 1, 2019, or July 1, 2020.

For this to happen, merging districts would have to elect their new districts’ school boards, which would, in turn, have required a new district to hold its transitional meeting and allow its appointed transitional board to warn elections.

In districts under orders to merge both in Franklin County and statewide, voters opted instead to postpone those transitional meetings as Act 46 is constitutionally challenged in court. Most were postponed with a set resumption date in mind, and those postponed indefinitely have had their resumption date ordered by the Secretary of Education.

For districts merging into another existing district, such as the ordered consolidation of Sheldon’s and Montgomery’s school districts under Bakersfield’s and Berkshire’s previously merged Northern Mountain Valley Unified School District, the school board of that existing district would determine whether the operational date of the merger would be set for either July 1, 2019, or July 1, 2020.

Per the committee’s proposed amendment, districts where the school board opted not to set a deadline would default to Act 46’s original deadline of July 1, 2019.

Districts where the consolidation depended on a positive vote from an existing district “shall be as specified by the [State Board of Education’s order.]”

This language effectively replaces the piecemeal delay of the House’s original bill, which guaranteed delays for merging districts where their respective merger was never brought before voters and for mergers where forming districts were ordered to join an existing district.

In Franklin County, H. 39’s current language would only allow for the Northern Mountain Valley district and the Franklin Northwest Unified Union School District to delay their respective mergers into 2020. Enosburgh and Richford, where voters previously defeated a merger plan, would have still been beholden to Act 46’s original 2019 deadline.

Robert Mello

Judge Robert Mello presides over a Feb. 15 hearing on issuing an injunction to stall merger activity while a trio of lawsuits charging Act 46 as unconstitutional are argued in court. (Michael Frett, MESSENGER STAFF)

Proponents of delaying Act 46’s mandated mergers have argued that the narrow window permitted to merging districts isn’t enough to handle the complicated process of merging school districts, and that the combination of lawsuits, postponements and previous delays have only complicated the process further.

Others advocating for a delay assert that Act 46’s original timeline would likely place a merger’s deadline before the court could issue a decision on any of the three legal challenges to Act 46, denying due process to those suits’ plaintiffs.

Opponents to delaying those mergers ordered under Act 46, including the Vermont Agency of Education (AOE), suggest that stretching the Act 46 deadline any further could make the process even more difficult for schools ordered to merge.

The Agency’s presented testimony to the Senate’s education committee echoing that argument.

“Delay and confusion create more pressure on local officials, who have already been asked to take on tremendous stress and responsibility in implementing the law,” AOE’s testimony reads. “It is unfair to ask public officials to endure hyperpoliticized school governance climates for another year, unless a clear benefit to students can be identified.”

AOE also stressed the possibility of administrative confusion from the overlapping authorities of the forming school boards and the merged districts’ new school boards, though previous school mergers have successfully navigated those overlaps in the past.

AOE is still supporting failsafe language that would permit a new district to default to an operational budget equal to 87 percent of its forming districts’ last budgets should voters fail to pass a budget ahead of their consolidation’s deadline.

That language, included in the House’s version of the bill, remains in the Senate education committee’s proposed amendment.

Every day this past week, the Senate Committee on Education heard testimony on H. 39 from education specialists and school board members statewide, including representatives from the Montgomery and Franklin school boards.

Robert Berger Franklin

Franklin school board chair Bob Berger speaks during a special meeting last summer to protest Franklin’s merger with Highgate and Swanton. (Michael Frett, MESSENGER STAFF).

In both cases, members of the Montgomery and Franklin boards advocated for the option to delay, citing namely the confusion continuing to mar the Act 46 process and the need for due process as their respective lawsuit against Act 46 is heard in court.

“There is too much dissent and confusion to meet the July 1, 2019, deadline,” summarized Mary Niles, the chair of Montgomery’s school board, near the front of a ten-page testimony arguing in favor of the delays.

Both Franklin’s and Montgomery’s school boards and respective selectboards are parties in a statewide lawsuit challenging Act 46 as unconstitutional, joining school boards from Highgate, Richford and Sheldon, among others.

While that suit remains undecided, Judge Robert A. Mello, the judge presiding over all three Act 46 lawsuits, did issue a decision against an injunction to halt Act 46 mergers while those lawsuits are argued in court.

His 25-page decision on the injunction argued that the largest of those suits likely wouldn’t succeed on the merits of their arguments and hints toward Mello ultimately siding with the state in upholding Act 46.

The Senate Committee on Education has scheduled its vote on H. 39 for Friday afternoon.

Pending the committee’s approval, the bill will be brought to the Senate floor.

Absent the Senate passing H. 39 and Gov. Phil Scott signing it into law, and absent any orders from the court, districts merged under Act 46 are still under order to meet the law’s original July 1, 2019, deadline.

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