The Legislative Council invited Town Attorney David L. Grogins, of Cohen & Wolf, PC, to its October 21 meeting to get his legal opinion on the Board of Education (BOE) non-lapsing account. The meeting was conducted both in-person and with a call-in option.

Legislative Council Chair Paul Lundquist prefaced the conversation by saying, “We basically started this discussion a little while back and we started to get into people’s thoughts on the current proposed policy… to get a really clear perspective on what role the Legislative Council actually is, or should be, in these conversations around transferring BOE excess funds into a non-lapsing account.”

Grogins submitted a letter, dated October 20, to First Selectman Dan Rosenthal and Lundquist stating his opinion on the procedure to transfer BOE surplus at the end of the fiscal year.

Lundquist said upon receiving the letter, he shared it with the Legislative Council, Board of Finance (BOF), and BOE members.

The letter reads, “You have requested my opinion on the procedure for dealing with Board of Education (“BOE”) budget surpluses at the end of a Fiscal Year. In this regard, under normal circumstances, unexpended apportions lapse are transferred back to the Town General Fund Balance. In the event the BOE has excess funds and wants to retain these funds, the procedure pursuant to Section 6-35 of the Newtown Charter (“Charter”), is that the BOE requests to retain the funds, the Legislative Council requests a recommendation from the Board of Finance (“BOF”) pursuant to Section 6-35(d) of the Charter (which must be given in 90 days but can be extended an additional 90 days) and thereafter the Legislative Council may act. The procedure is governed by Section 10-248a of the Connecticut General Statutes, and Section 6-35 of the Charter.

“Notwithstanding the above, a question has been raised concerning a procedure on this issue apparently adopted by the Board of Finance (“BOF”) in [May] of 2014. The discussion regarding this procedure set forth in the [May] 1, 2014 minutes of the BOF would appear to contradict the position set forth above…

“I take exception to the procedure adopted by the BOF at that meeting. The statute referred to above (C.G.S. 10-248a) provides a method of dealing with excess funds of the BOE which, given Newtown’s Charter, treats the funds similar to a “special appropriation” and since Section 6-35 of the Charter requires the Legislative Council (as opposed to the BOF) to make the final decision on how to handle such excess funds, it is my opinion that the procedure which I recommended in the first paragraph of this letter is the correct and legal procedure.”

Grogins spoke at the Legislative Council meeting, stating it is important to understand where he was coming from with his opinion.

Per the specifics of the leftover funds, he said, “I want to make it clear that I did not say this was a special appropriation. I said it’s like or similar to one, because it’s an allocation of funds, not as part of the budgetary process but subsequent to the end of the year when there’re excess funds leftover. The statute clearly provides a roadmap as to how that is to be dealt with.”

He went on to say that Newtown is a charter town and when the BOF was created, in 2001 according to Rosenthal, the group was given no authority except to make recommendations to the Legislative Council.

The “very unusual system in Newtown,” Grogins said, is different from other towns who have a “true BOF” that can make decisions, such as in Ridgefield.

“You’re making decisions on the allocation of funds, and this is either to go back to the general fund or be held in a special fund for the BOE. It’s my opinion that the decision is the decision of the Legislative Council ultimately,” Grogins said.

BOF Chair Sandy T. Roussas, who is also an attorney, spoke up to represent her opinion — not on behalf of her board — saying she did research on the subject and respectfully disagrees with Grogins’s interpretation.

“I think his interpretation creates a conflict with the charter and the state statute…” Roussas said, “The statute is very clear, it says, ‘Notwithstanding any provision of the general statute or special act or municipal charter or home rule ordinance.’”

She later added, “From my perspective, the authority to deposit money into that non-lapsing account belongs to the BOF, per this statute.”

After hearing Roussas’s point of view, Grogins responded by saying, “I understand that there is some feeling among the members of the BOF that they ought to have the authority to make that decision, but there’s nowhere in the charter that grants the BOF ultimate authority over financial matters. They have recommendation ability.”

Lundquist said that Roussas made valid points and that the next steps would be refer it to the BOF and have it written and submitted to the town attorney.

For more information about upcoming legislative council meetings, visit newtown-ct.gov/legislative-council.