Should the Concord school board retain its autonomy? It will take a supermajority to change it

Jeff Wells from Concerned Citizens for Concord holds the 1,500 petition signatures in front of the School District building on Monday, August 15, 2024. The group submitted its petitions to put changes to the school district charter on the ballot this fall. Wells and the group also made a map showing where all the signatures came from.

Jeff Wells from Concerned Citizens for Concord holds the 1,500 petition signatures in front of the School District building on Monday, August 15, 2024. The group submitted its petitions to put changes to the school district charter on the ballot this fall. Wells and the group also made a map showing where all the signatures came from. GEOFF FORESTER

By JEREMY MARGOLIS

Monitor staff

Published: 10-04-2024 3:37 PM

A pair of amendments that will serve as a referendum on the autonomy of the Concord School Board will require a supermajority of 60% to pass, rather than the lower state law threshold of 50%.

In interviews, two Concord attorneys dismissed any argument that Concord is running afoul of state law by mandating a higher margin, citing an attorney general review. Superintendent Kathleen Murphy and school board president Pamela Walsh also maintained the 60% threshold was beyond doubt.

The proposed amendments that will appear on Concord’s Nov. 5 ballots would institute a voter approval requirement any time the board wishes to relocate a school building or sell its property. While those changes might seem minor, they reflect a segment of the city’s frustration with the school board’s decision late last year to build its new middle school on raw land miles away from its current location.

Critics of that decision have argued that Concord’s unique school district charter cannot “trump state law,” which sets the threshold at a simple majority.

“If you think about it, if they can set a 60% threshold, why couldn’t they set an 80% threshold? Why couldn’t they set a 90% threshold?” said attorney Bert Cooper. “If they have the power to do 60, which is in contravention of state law, then they would have the power to basically prevent charter amendments.”

But James O’Shaughnessy, the attorney who represented the district’s charter commission in 2022, said the voting threshold portion of the law establishes a floor rather than a ceiling. 

“The challenge is figuring out what parts of [the state law] create the floor – like the baseline obligations – and which parts are not subject to modification by the community,” O’Shaughnessy said in an interview where he answered questions on his own behalf, rather than on behalf of his former client. “The majority voting threshold to amend a charter is the baseline – it’s the floor.”

The attorney general’s office declined to comment for this story beyond referring to the 2022 letter written by Myles Matteson, an attorney in the election law unit, who deemed the standard “consistent” with state law 49-B.

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After Matteson’s review and those conducted by two other state agencies, the 2022 revision went before school district residents, who approved the update by a vote of 10,270-3,264. The 76% approval rate surpassed the 60% threshold and formalized the higher rate for all future amendment votes.

“If people had a concern, including people who are raising concerns now, they were all there; they were aware; they were on notice of these changes,” O’Shaughnessy said. “That’s when there should have been an objection to having a supermajority vote.”

“From a process standpoint, people have kind of spoken on that issue,” he added.

O’Shaughnessy and Bill Glahn, a Concord resident and attorney who served on the charter commission in 2022, said the commission was motivated by stability when it settled on the 60% threshold.

“The idea is you don’t want to make it necessarily easy to amend the organic document for the school board or for any other constitution,” said Glahn. “It shouldn’t be subject to the whims of voters at any particular time; it ought to have a high standard.”

The governance of Concord’s school district has a long and singular history. Until 2010, the state legislature controlled the district’s charter, making it the only district in the state with that arrangement. After lawmakers ceded their power, Concord voters approved their own charter in 2011 and established a requirement that the charter be revisited 10 years later, which led to the 2022 commission process.

Because of this unusual history, Concord is believed to currently be both the only local district in the state that has its own charter and the only one that operates entirely independently, meaning that it doesn’t need the approval of a city council or voters to pass its budget, raise taxes, or issue bonds to build new schools.

That autonomy has rankled some residents who believe the district has lost voters’ trust.

“Up until this past December, I had confidence in my school board. I was proud of their complete autonomy and felt they were good stewards of our children and money,” Debra Samaha said at a hearing on the amendments last month.

But following the middle school decision, she argued the board had grown “fiscally irresponsible with taxpayer money.” 

“It’s a shame that we as a community have to ask for a change in your charter, so that we as residents can be empowered to have a role in school relocation decisions,” she said.

Even if the amendments do pass, it remains unclear whether they would apply retroactively to the middle school decision. Though the school board has already voted to relocate its middle school with estimated costs of $150 million or more, it hasn’t moved it yet, and the current timeline anticipates the start of construction is still more than a year away.

The amendment states that no “Concord public school existing as of January 1, 2024” may be relocated “from the parcel on which it was situated as of January 1, 2024” without a “simple majority vote.”

School board member Bob Cotton has previously voiced the view that the amendment would not apply retroactively.

“The potential again rises that there could be a further delay as a result of litigation over whether the amendment would have retroactive effect,” he said last month.

Despite the attorney general’s sign-off on the 60% threshold, a vote that comes in between 50% and 60% could also prompt litigation, said Cooper, who spoke on his own behalf, rather than on behalf of the group that initiated the amendments, Concord Concerned Citizens.

“I think that at the end of the day there would have to be a discussion as to what the group felt was the best thing for Concord,” Cooper said.

Jeremy Margolis can be contacted at jmargolis@cmonitor.com.