February 13. 2013 11:14PM

Lawyer to Manchester Charter Commission: School board must stay within tax cap

New Hampshire Union Leader

MANCHESTER - The legal counsel for the Charter Commission told the panel Wednesday that he believes the school board is obligated to submit a budget within the tax cap.

"I share the city solicitor's view," attorney Richard Lehmann said.

Lehmann offered his opinion on nearly a dozen questions the panel asked him to investigate, including whether the school district may be made a city department and whether the district may be given taxing authority.

While all of Lehmann's answers were fairly complicated, on one question he was clear: the commission may only propose changes en masse to voters, not individually. Lehmann said this was the view of Secretary of State Bill Gardner, who must ultimately sign off on the Charter ballot.

The question concerning the applicability of the tax cap to the school budget is more complicated, especially in light of the late discovery that there is conflicting language concerning the tax cap in the city Charter.

Still, Lehmann's overall opinion was that the district must submit a tax cap budget.

"I see nothing in the Charter that prohibits the school district from proposing a second budget request that does exceed the previous years' budget cap and that requests an amount that exceeds the school budget's relative proportion of the cap. However, it is my opinion that the provisions of the tax cap require the school district to produce a budget that stays within the cap as well," Lehmann wrote in a 10-page letter to the commission responding to its questions.

The legal counsel for the school district has offered a different opinion, that the budgets for the city and the school district should be taken together, not individually, when considered by the aldermen for approval under the tax cap.

Lehmann said he still needed to clarify the exact language of the charter that is in force concerning the budgetary responsibilities of the mayor.

Questions concerning the authority of the school district versus the mayor and aldermen are complicated by legal battles that go back longer than a decade, Lehmann explained.

On the subject of whether the city could again make the school district a department, Lehmann was clear. Despite court rulings that blocked the city's attempts to do so, a statute enacted in 2004 gives the city that authority. (The original bill was proposed by Commissioner Will Infantine.)

But Lehmann cautioned the school board would still, under state statutes, retain substantial authorities in setting policies and managing its budget.

"People who create new rules should do it for a reason," he said. "I don't know exactly what the change would be. I think it would be clear that the city was making an effort to maximize the authority the Board of Mayor and Aldermen have over the district."

As for giving the school district greater independence, including taxing authority, Lehmann said this too may be legally permissible. One simple way to do to remove the language from the Charter stating the district must submit its budget to the mayor and aldermen for approval.

But he raised concerns about the lack of oversight that might result from such a change.

He noted that in Concord, the school board has its own taxing authority.

"As someone who lives in Concord, there are a lot of folks who find it unsatisfactory," he said.