Court action looms over schools' fund Panel meeting tonight to discuss challenge of restrictions imposed; 'We don't have any choice'; Gary isn't trying to control the board, spokeswoman says


Angry and frustrated, the Anne Arundel County school board will meet in an unusual closed session tonight to discuss whether to challenge the county in court for holding $8.5 million of school money in a special fund.

"We don't have any choice but to go to court over this," said board member Thomas E. Florestano of Annapolis. "This is called 'Sophie's Choice' -- she was the woman who had to choose which child to give to the Nazi death camps. This has ramifications not only for us but also for the entire state."

The debate over how much authority the county government has over school spending is the latest skirmish in a war that dates to the beginning of County Executive John G. Gary's administration.

The battle flared in May when Gary accused the board of padding the budget and said Superintendent Carol S. Parham agreed to inflate her budget in exchange for her contract renewal.

This year, Gary put $3.5 million for 40 new teachers in a county contingency fund, to be released to hire new teachers rather than give teacher raises. The council agreed and added $5 million to the fund for Chesapeake Center for the Arts and the new Brooklyn Park Middle School.

In his capital budget, Gary gave the board $8 million for a new Davidsonville Elementary School, but only if the board picked a site he prefers. And he has allotted $7.3 million to plan and build Mayo Elementary School next year, though the board has said it wouldn't need planning money until 2001 or construction money until 2002. The council approved and voted that money into the budget.

Telling the school board how to spend its money is illegal, said P. Tyson Bennett, the board's lawyer. State law creates a division of power between the county and the Board of Education.

David A. Plymyer, deputy county attorney, seemed to agree in a May 19 memo to the County Council.

A county could give money to a school board outside of regular budget channels "as long as no strings were attached which usurped any of the prerogatives of the Board of Education in matters of education policy," he wrote.

'Balance of power' questions

If the County Council appropriates money for construction of a school not requested by the board, the "balance of power" between the two would be "upset with the county assuming for itself the power to initiate capital projects, in addition to the power to reduce, defer or eliminate projects requested by the board," he said.

"I don't believe that such action by the council could be defended successfully in court," he added.

But yesterday, Plymyer said the memo was written in response to hypothetical questions raised by the council during the budget hearings and has no bearing on the council's actions. Because the $8.5 million in the contingency fund can, theoretically, be spent on anything, there are no strings attached, he said.

"There have been informal comments about what might happen with the money," he said. "But as a matter of law, intent and voting it into law are two different things. If it was written into the budget for specific things, there would be a problem."

Will advise school board

Bennett said he is unsure how he will advise the board tonight. Not challenging the county on this issue could set a dangerous precedent for this county and other jurisdictions, he said.

"If the county executive is going to do this now with $9 million, then he may do it with $400 million next year," he said. "So it's a very dangerous step. Every board of education would be concerned with a county executive applying that kind of pressure."

Plymyer agreed that going to court is risky: A judge could rule that nobody gets the money, and then everyone loses.

"The last thing the taxpayers want to see is their money being spent on litigation between two areas of the government," he said.

zTC Carlesa R. Finney, president of the school board, said it is important for people to understand that state law requires a balance of power between the county and the Board of Education.

"I think the county executive would like to have control of all the county budgets, including the school board," Finney said. "This is one piece of his budget that the state has clearly said no."

But Gary wants no part of determining educational policy and is not trying to control the board, said his spokeswoman, Lisa Ritter.

"Mr. Gary took advice from the law office, and he does not believe this poses a problem for the county," she said. "He believes it is the right thing to do, and sometimes you have to take a risk when you believe it is the right thing to do. We have found no other way to guarantee that teachers get in the classroom."

Pub Date: 6/10/98

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