Lower Merion to appeal court ruling, moves forward with new tax hike for next year as supporters and critics come out for latest board meeting

Ardmore >> Days after a judge threw out its appeal, Lower Merion School District officials Monday night said they will continue to fight the taxpayer lawsuit through another appeal. At the same time, the administration also moved forward the 2017-2018 budget that includes another tax hike — but one that is a bit smaller than had been projected a few months ago.

Under the proposed final budget that was presented at Monday night’s monthly business meeting of the Board of School Directors, the increase will be 2.99 percent, lower than the 3.85 percent the administration proposed in January.

Residents packed into Monday’s meeting, waiting to weigh in on the taxpayer lawsuit and other school district business. Just a few days prior, a three-judge panel threw out Lower Merion’s appeal of Montgomery County Judge Joseph Smyth’s order from last August that the district must rescind a portion of the 2016-2017 tax increase. According to the opinion in the latest ruling, the appeal was tossed because the district’s attorneys failed to file post-trial motions that the court determined were required.

The district has taken the opposite view, saying it was correct in not filing the motions. District solicitor Ken Roos, in reading from prepared comments, explained last week’s ruling from the Commonwealth Court and what the district’s next legal steps would be.

“The Panel concluded that Judge Smyth’s Order was a permanent or final (as opposed to a preliminary) injunction and that the District should therefore have filed post-trial motions rather than taking an appeal,” Roos said, according to a printed copy of his prepared remarks. “All district legal counsel believe that conclusion is incorrect and that post-trial motions were neither required nor appropriate in a case in which significant questions and issues remained (and remain) undecided. I also want to be clear that this issue was carefully researched and thoroughly and collaboratively deliberated at the time and that the decision not to file post-trial motions was a conscious and deliberate one. The Board has therefore directed its special counsel to seek appellate review of the panel’s order through Application for Reargument en banc and any other appeals deemed necessary.”

According to Roos, the court was wrong because the trial court had noticed the hearing as a preliminary injunction hearing and not as a trial for a permanent injunction. He added that it is possible to convert a preliminary injunction hearing into a trial on a permanent injunction but it can only be done with the consent of all parties.

“The trial court erred in converting the hearing on the preliminary injunction to a final hearing on the merits of the permanent injunction because it did so without a stipulation from the parties,” Roos said.

He also said the district posted a bond that applies to a preliminary or special injunction and not to a permanent or final injunction, as per Judge Smyth’s directions, according to Roos.

Roos went on to say that the Rule of Appellate Procedure says that an injunction is appealable and not a preliminary injunction.

“Whatever label the injunction is given, the fact remains that much of the case remains untried and undecided … It follows that the injunction was an interlocutory order appealable as of right as opposed to an order with the requisite finality needed for post-trial motions,” Roos said.

Citing a case of City of Philadelphia v. Frempong, Roos went on to say, “in the case of an order that is appealable as of right … ‘post-trial motions are neither required nor permitted.’”

After the meeting, Roos explained that the district’s decision to appeal means it would be taken to a larger panel of judges.

Following the comments made by Roos, the board weighed in on the ruling.

“Despite the decision and the next legal steps the district may take, our primary focus continues to be providing high-quality education to over 8,300 students in our 10 schools,” Board President Robin Vann Lynch said. “As board directors, we take great pride in the academic, co- and extra-circular experiences and that make attending out schools special.”

In response to a question during the public comment portion of the meeting asking how long the district would continue to fight the suit, Vann Lynch indicated the district will continue its fight.

“...Our core values suggest we will fight it until we win,” Vann Lynch said. “… Our constituents and as a publicly democratically elected school board, we will continue to do what’s right. There’s no fuzzy math here, nothing to hide from. We unapologetically provide the kind of education for all of our kids.”

When asked further by the resident about a budget or a cost the district is willing to pay for the legal fight, Vann Lynch added that she could not answer that but it’s an issue the board could take up.

Along with the discussion of last week’s court decision involving last year’s budget, the board also had to hear a discussion on next year’s 2017-2018 budget that runs from July 1 of this year to June 30 of next year. When the preliminary budget was introduced early this year, it called for a tax hike of 3.85 percent. However, at Monday night’s meeting, it was announced that the increase was dropped to 2.99 percent.

According to Superintendent Robert Copeland, the reason for the drop was an unexpected savings in money it was to put aside for insurance. In November, the district was told by its insurance actuarial that it would need to put about $29 million aside for health insurance. However, the district was later told it could lower that amount to about $27 million.

“So we’ve reduced that line item by $2 million,” Copeland said. “… So that’s what allowed us to bring down the tax rate.”

Copeland also spent time discussing the reserve fund that has been an important part of the lawsuit.

Under the suit that was filed last year, the district has over the past several years projected budget deficits and then ended up with surpluses each year and that money has gone into a fund balance of about $55 million, according to figures Copeland used Monday night.

According to Copeland, after 2020 the district will need some of that money to cover costs associated with its pensions.

“We can see that [by] roughly 2020 there’s going to be a significant parting of what our revenue capacity is ... what we estimate our expenditures will be,” Copeland said. “So in order to maintain our programs from 2020 on, we have this reserve. If you spend down that reserve now we will get to the 2020—2021 period … and say, ‘and now I don’t have any way to meet my revenue projections. We’re going to have to drastically reduce our programs.’ ”

As has been discussed in many past meetings, Copeland also cited the increase in student enrollment as a driver of its overall cost increases.

Copeland also cited costs associated with special education that is increasing the district’s overall budget without more money from the state. According to figures provided by Copeland, over the last 17 years the state’s funding for special education has remained flat at less than $3.5 million but during the same time, the district’s special education costs have increased from less than $15 million to nearly $47 million.

Following the district’s presentation, members of the public were able to speak on agenda items and most of those did so on budget issues.

Jane Broderson, who founded the SaveLMSD, a group that has been opposed to the suit, was the first to speak and said the plaintiffs in the lawsuit are making promises about refunds that they can’t keep.

“If something seems too good to be true, it usually is,” Broderson said “Do we really think we can maintain our amazing programs and class sizes the way they are and keep our Triple A municipal bond rating in the face of the largest influx of new students in the state while at the same time slashing $40 million out of our budget and handing out tax refunds, too? Beware of Greeks bearing gifts.”

According to Broderson, the plaintiffs have said taxpayers could expect a $1,400 tax refund but she estimates the refund would only be about $200.

 

Philip Browndeis, one of the three plaintiffs in the suit, read a prepared statement from lead plaintiff and attorney Arthur Wolk, who was unable to attend the meeting.

“Now that the law and facts have determined that you engaged in systematic misrepresentation to your budget to the taxpayers and you illegally accumulated more than $60 million in reserve, do you intend to voluntarily refund that money to the taxpayers?” he said.

“Given that you lied to us about how much the last contract with the teachers’ union cost and bragged that you only gave them a half-percent salary increase but neglected to mention the 7 percent increase in benefits, do you intend to increase salary and benefits again just two years later?” he said.

Other residents spoke both for and against the suit.

Daniel Marein-Efron of Wynnewood said he wishes to not be part of the suit and questioned the motives of the plaintiffs.

“As a resident who does not want to be a part of this class-action lawsuit against the schools, I respectfully ask the plaintiffs to withdraw the lawsuit,” Marein-Efron said. “The lawsuit is not about efficient spending by the school. Instead, the lawsuit distracts administrators from focusing on being more efficient. This lawsuit is about depriving other people’s children a great education and giving them a basic one instead, especially racial and economic minorities and students with disabilities.”

Judith Levine, who described herself as the parent of a Bala Cynwyd student and a professor who studies social policy that addresses social inequality and a proud graduate of Lower Merion, said she wanted to lend her support for the budget and thank the board for what she called its foresight “as you grapple with challenges that the district will be facing because of increased enrollment.

“My family lives here because the district is strong and we want it to stay that way both for the education of our children and the maintenance of our property values. I don’t fully understand why there’s a fiscal argument of keeping the schools strong,” Levine said.

Still, others expressed their support for the suit.

Brad Moser of Gladwyne said there has been a misunderstanding of those who support the Wolk lawsuit.

“It’s not that we want less of the quality of an education, it’s that we want an education that is fair to all of the community and the school board and the students aren’t the only people who live here. We’re going to lose our family home of 62 years because my mother can’t afford to pay the taxes anymore – it’s gone.”

Moser said as a contractor he often had to tighten his belt and negotiate with others. “What about the negotiations with all the things you guys are spending money for?” Moser said. “It’s not that we want to lower it, what we want to do is be sure we get the best bang for our buck. And when you deal with the different unions, those unions have a responsibility, like the rest of us Americans to tighten our belts.”

After the majority of the audience left following the public comments, the board voted to tentatively approve the 2017-2018 budget with the 2.99 percent tax hike with a final vote on it expected in June.

Following the meeting, Roos said they the district has 14 days after last week’s decision to file its appeal. The court then would have 60 days to decide whether it would hear reargument.

Letter: Responds to Wolk’s letter regarding LM School Board

Responds to letter by Wolk regarding LM School Board

To the Editor:

Arthur Wolk has made it his business to attack the current school board of Lower Merion over its tax policy. He called them liars at a school board meeting, told them to make do with what they have in terms of facilities (MLT 3/16/17), and now urged citizens to kick them out, bizarrely comparing them to Hilary Clinton’s e-mails (MLT 3/23/17). I do not know Mr. Wolk personally. I do not know if he is as altruistic as he claims, does not like paying his school taxes, or shares with people in the new Right Wing the idea that people should be judged by their incomes; people wealthy enough to send their children to private schools are more socially valuable. His initial pleading does make clear in his own words that he believes that public schools should not be funded at the same level as private schools.

Let’s step back calmly for a minute. The purpose of the school board is first and foremost educating our community’s children. Its directors are to monitor the actions of school leaders and employees and to set broader goals and policies for the district. Left undiscussed in the heat of yet another tax discussion in this very wealthy area is the remarkable accomplish of these same school directors in writing a new comprehensive educational plan. That plan promises to prepare our children for the reality of the world they will enter as adults, not the old model that assumes many will be headed to factory work.

Second, unlike what he implied is his earlier letter to MLT, the increase in students is not a matter of demographic projection. They are here already. This is not happening in Radnor or other districts Wolk’s supporters like to cite. Why is that? We have choices to make. Do we want to make do, and see an increase in class sizes? Do we want to cut programs? Do we want to hire the new teachers that will be needed and pay into their pension funds now or create a ticking time bomb like the Republican legislature in Harrisburg? Budgeting in such a dynamic situation is difficult. After assessing taxes, the school board cannot go back midyear to ask for more.

I cannot claim to understand fully the complexity of tax law. Maybe the board should have sought a vote or taken other action. What I do know that the current board are extraordinary public servants. For no pay, they spend at least 20 hours a week laboring to improve our schools, the heart of our community and the basis of our property values (the reason these new families are moving here). I know them all personally and they are not liars and do not deserve the rough treatment Mr. Wolk has given them. I know as well that the funds in question have not been misappropriated; they are right there for all to see. If the court orders them to return some, they can and will. Make no mistake, however, that cutting costs has educational consequences.

 

When the vote comes in the primary on May 16 and the general in November, please ask yourself the following. Do the candidates really understand education and how to provide an excellent education for all of our children, or are they only talking about cutting taxes without assessing the educational costs? Are they offering the same quick and empty promises that we now understand are the ideological fantasies (our nightmares) of too many in the current government in Washington, DC?

Mitchell Rothman

Merion Station

LMSD'S Response to Wolk Letter

LMSD response to Wolk letter

To the Editor:

Mr. Wolk’s latest letter to the Main Line Times regarding the District’s recent facilities newsletter is yet another example of his ongoing campaign to mislead residents and attack public education in Lower Merion. The following is a line-by-line response to his piece (in quotes):

“Recently the Lower Merion School District sent to every resident, at a cost no doubt near $20,000, a plan for expanding its collection of schools by 3.”

The mailer does not discuss a plan for adding three schools to the District. It offers a variety of strategies to address unprecedented enrollment growth in the District. LMSD is currently the fastest-growing school district in Pennsylvania by total number of students. Enrollment has grown by more than 1,000 students over the past five years due to factors that include decreasing private school enrollment, a greater student draw rate from multi-family units, increasing home sales and the development of new housing throughout the community.

Additionally, we are surprised that Mr. Wolk takes issue with the District’s efforts to proactively communicate with taxpayers as this has been one of his ongoing demands. The total cost of the community mailer was less than $13K, not $20K as Mr. Wolk asserts.

“The total capacity of these three new schools will be about 3,000 students in addition to the 1400 vacant spaces already available in the existing buildings.”

This is false on multiple levels. First is the false premise that the District is constructing three new schools – as stated above, there is no plan to do so. Second, the notion that there are “1,400 vacant spaces” is extraordinarily misleading. If LMSD is to deliver its current programs and maintain appropriate class sizes without massive, student-by-student redistricting (or tactics like shifting elementary students into open seats at the high schools, for example), the math simply doesn’t work.

“By the district’s own projections school population will decrease after 2020 so by the time these buildings are completed they will be empty!”

The District’s facilities plan is based on verified enrollment data. The enrollment data have been verified by the Montgomery County Planning Commission, a governmental agency wholly independent from LMSD. The District also commissioned a second enrollment study by Sundance Associates that affirmed significant enrollment increases. For the purpose of his own arguments, Mr. Wolk continues to ignore the facts – enrollment in LMSD is increasing dramatically and the District is making every effort to plan for this growth. A simple drive down Montgomery Avenue would illustrate the challenges we are facing; new housing construction is happening in every corner of the community.

“How much will they cost? The district was silent as usual. Let me tell you. $150,000,000 dollars minimum, that’s one hundred fifty million dollars in addition to the $250,000,000 we are already in debt.”

Actually, the District has been far from silent. Projected costs were part of the mailer and have been part of every public discussion on this topic for nearly two years. The District is providing a number of scenarios for public review and discussion. Ultimately, the Board and community will need to decide how to best to address increasing enrollment while preserving the quality of our schools in the most fiscally-responsible manner.

 

“How will that affect your school taxes. Under new legislation being considered in Harrisburg, your State income tax will be raised to support schools but those districts in debt will still be permitted to tax.”

Perhaps as a scare tactic, Mr. Wolk continues to reference a failed school funding proposal that generated little support in Harrisburg and is currently a dead bill. There is no legislation in Pennsylvania that incentivizes districts to add debt as a means to increase taxes.

“In addition the district continues to violate an Order of the Court and raised taxes more than it needs, far more.”

This is wholly untrue. As Mr. Wolk well knows, the District is not in violation of any order and has not been at any time.

To read the District’s facilities newsletter, “Tomorrow’s Students, Today’s Challenges,” click here.

Lower Merion School District

Ardmore

Lower Merion Board approves preliminary budget with 3.85 percent tax hike

Lower Merion and Narberth residents are a step closer to seeing what the final 2017-2018 school district budget will look like and, so far, it comes with a proposed 3.85 percent tax increase.

Monday night, the Board of School Directors approved the 2017-18 preliminary budget but not before speakers on both sides of the issue fought to have their voices heard in the wake of an ongoing lawsuit over last year’s budget.

In a related development, the debate over the lawsuit and the district’s budget has also turned into a billboard campaign. The side supporting the district administration and opposing the lawsuit has put up a giant billboard at Lancaster Avenue near Anderson Avenue advertising their organization, saveLMSD.

Under the preliminary budget approved Monday, the district is projecting spending $267.7 million. That is up from $258.9 million that was projected to have been spent in the current 2016-2017 school year. The upcoming budget calls for a 3.85 percent tax hike to close an expected $8 million budget gap.

A property with an average value of $250,680 would have an increase of $264 per year, according to district figures.

Next year’s budget will continue to be discussed at upcoming meetings with the final budget expected to be approved at the board’s June meeting.

The preliminary budget approval also comes at a time when the debate is heating up over a lawsuit filed last year that has now gone before an appeals court. Last August Montgomery County Judge Joseph Smyth ordered Lower Merion School District to decrease the 2016-2017 tax hike from the board approved 4.4 percent increase to 2.4 percent.

The suit was appealed by the district and, in December, a court in Harrisburg heard both sides and a decision is upcoming. Meanwhile, both supporters of the lawsuit and opponents of it weighed in on the district’s budgeting practices.

Among the speakers was Jane Broderson who has been involved with the creation of a group called saveLMSD.com which is opposing the lawsuit and is responsible for the billboard in Ardmore. “We support strong public schools in our district and we support our school board,” Broderson said as she opened up the public comment part of the meeting. “We have a petition — the last time we checked there were 2,721 of us all standing together to support our strong public schools in the face of the $55 million lawsuit.”

Broderson also expressed her support for the idea that elections have consequences and in the most recent board elections the side she supported won the election and the other lost the election. “We elected you folks, we elected you fair and square, democratically,” Broderson said. “You won, some people lost. Our taxes are among the lowest in the region and our schools are among the greatest in the entire United States so we think you are doing right. We trust you and if the plaintiffs in the lawsuit are telling us we should trust them and they know what’s best for our community – to us that’s almost like Betsy DeVos saying ‘Trust me I’m going to do what’s best for the public schools in the US.’ We don’t think so.”

Daniel Marein-Efron, who is also with the saveLMSD group, said their petition shows that there are thousands of residents who are in support of the actions taken by the school board, the community and the teachers.

Marein-Efron also addressed the suggestion to save money by moving students from their home school to other schools where there could be more room instead of building on to existing schools. “I think at previous meetings there was a suggestion … about maybe we should move students around every semester or every year from one overcrowded school [to a less crowded school],” Marein-Efron said. “I think this would be very disruptive ... and I think it’s part of a campaign to try and reduce the quality of public schools. Let’s not fool ourselves — that’s what this is about. This lawsuit is simply about trying to starve the public schools of money to educate all the children of the community and I think this is something that we should all stand up [over]. This is not about some pennies here and some pennies there.”

Phil Browndeis, one of the three plaintiffs in the lawsuit, said the district has the money in its reserves to pay for the increase in spending. “I noticed this presentation didn’t include the $61 million in reserves highlighted in a slide,” Browndeis said. “With that in mind, this budget for 2017-18, you can spend that budget and give the taxpayers a break by using that reserve and not raising taxes this year. I think it would send a strong message that you hear what’s going on.”

Browndeis also mentioned older residents who worry about being able to stay in their homes due to rising taxes. “I know of the fervent supporters of the school board have even gone so far as to say, ‘well if they want to stay in their homes they should take out a reverse mortgage.’” Browndeis said. “I don’t believe any of you would suggest that’s how somebody should spend their older years – paying down their house for taxes and not being able to leave it to their children or grandchildren.”

Rosa Serota, who has attended board meetings regularly for decades, said people are forgetting that the lawsuit is about the money the district has in its reserves.

“I think you’ve muddied the waters,” Serota said. “This lawsuit is not about education, cutting courses – it is about a budget debt that is in excess of $55 million of reserves. You are asking us for a tax hike. That amazes me. It absolutely amazes me.”

Serota also expressed concern on the tone that supporters of the district have taken by referring to their opponents as “enemies of the school district.”

“... I take issue with that,” said Serota “I’ve attended school board meetings for over 30 years. I’ve served on committees. … I’ve shared my thoughts with you. I don’t call that an enemy of the school district. People can have different ideas and we don’t have to be characterized as an enemy of the school district. I suggest that you all look at this budget and do what is realistic.”

Lower Merion School District Argues Case in Harrisburg for Reinstating Tax Increase Thrown Out in August

Brian X. McCrone

An attorney for the district argued before a state appeals court that there is a "mistaken characterization" of the effort and funding that came before a tax increase was approved. A Montgomery County judge threw out the increase in August.

Jane Broderson and four other Lower Merion residents trekked to Harrisburg on Thursday for a state appeals court hearing on the township school district's recent tax increase.

Broderson and the other residents actually are in favor of a tax hike that was thrown out three months ago by a Montgomery County judge. The group, who call themselves "Save LMSD," said the rejection in late August of a 4.4 percent increase jeopardizes the affluent town's ability to "provide the best possible education to students.""He wants no kindergarten, no AP classes, no honors program, no athletics," Broderson said of attorney Arthur Wolk, who successfully sued to have the tax rescinded. "That is not what we want."

The hearing once again pitted the district against three taxpayers who claim school officials have mischaracterized district finances -- to taxpayers and state oversight officials alike -- for the last decade while building up large reserves.

Lower Merion's attorney Alicia Hickok, hired for the appeal, argued that the case so far has relied on a "mistaken characterization" of district spending and savings put forth by Wolk during the initial case before Common Pleas Judge Joseph Smyth and again Thursday.

She also argued that Smyth sidestepped the authority of local elected officials and state oversight.

"Judge Smyth said he could second-guess the (Pennsylvania) Department (of Education. But he doesn't have the authority to do that," Hickok said.

The residents shook their heads as Wolk in turn told a three-judge panel of the Commonwealth Court that he took the district to court for reasons bigger than the tax bills of himself and the two other taxpayers named as plaintiffs.

"In fact, I represent 20,000 taxpayers," Wolk, a township resident, told the panel, referring to all of Lower Merion's property owners who pay school taxes.

A ruling by the panel of judges is not expected until the new year. Based on their questioning of Hickok and Wolk, the two sides said there could be several outcomes. In addition to Lower Merion's appeal to have its tax increase reinstated at the rate adopted in the summer, the judges are considering two motions by Wolk to: reject the appeal based on procedural technicalities in the aftermath of Smyth's ruling; and ignore briefs filed by three state education associations, including the Pennsylvania teachers' union, in support of Lower Merion.

The groups claim Smyth's ruling amounts to "judicial meddling" in the affairs of an elected body that acted within its constitutionally protected powers.

Lower Merion schools fight in court to raise property taxes

LAURA BENSHOFF

In Pennsylvania, school boards have tremendous power to tax and spend, designated by state law. 

In August, Montgomery County judge Joseph Smyth challenged the existing order when he ruled Lower Merion School Board could not raise taxes as high as it planned. School officials have appealed, and oral arguments took place in Harrisburg Thursday. 

Attorney and Lower Merion resident Arthur Wolk, along with two other plaintiffs, filed the class action suit back in February, alleging the school district illegally raised taxes to sock away in rainy day funds and asking for $55 million in damages be returned to past and present residents.

"My upset is not over the great school, my upset is charging us more that. In other words, they took $60 million over what is necessary to fund their schools," Wolk said, following Thursday's oral arguments.

Lower Merion has some of the highest spending, per pupil, of any district in the state and Lower Merion High School is ranked fifth in the state, according to U.S. News and World Report.

Lower Merion officials argued the increases are completely legal and their fund balances will help cover future expenses without having to borrow money.

Tax increases above 2.4 percent, the limit under a law known casually as Act 1, require a voter referendum unless they are necessary to cover pension or special education costs. In that case, the state Board of Education directly approves the increases, as they did repeatedly for Lower Merion.

Lawyer for the district, Alicia Hikock, said Wolk has misinterpreted state law around Act 1 and fund balance limits, and that the suit is inflected by his politics.

"I think also he has a different philosophy, that you should spend less on education and you should spend everything down to zero," she said.

Wolk has been critical of Lower Merion's course offerings and amenities, calling the district "out of control with its opportunities...approaching private school levels."

If it upholds that decision, the Commonwealth Court's ruling could have broad implications for schools across the state, according to Jay Himes, executive director of the Pennsylvania Association of School Business Officials.

"It's very concerning because it would be a sort of reinvention of the wheel from our perspective," he said.

The appeals court could issue a decision or decide to hear the case again, in front of a larger panel judges.

What do Clinton, Reagan, Carter, and Nixon have in common?

"I'm a student at LMSDH and I don't understand why my education or the education of my peers should be downgraded because one man doesn't want to pay his taxes. Doesn't the education of children not only benefit them but those who live around them?
For instance, Steve Jobs went to a public high school. Presidents Clinton, Reagan, Carter, Ford, Nixon, Johnson, Eisenhower, and Truman all graduated from public high schools."

Lexi - Student @ LMSDH