AUGUSTA — Gov. Paul LePage plans to shift $1 million from public education funding to pay for legal defense for the board that authorizes charter schools. The plan is meeting resistance from public school advocates and the state’s top lawyer.
The proposal, part of the governor’s $6.3 billion budget for the two years starting July 1, was highlighted during a recent hearing by the Legislature’s budget-writing committee. It would divert money from the state fund that distributes aid to school districts to a “legal contingency” fund for the Maine Charter School Commission and the Department of Education.
The organization that represents public school boards questioned why the legal fund is necessary when the state Attorney General’s Office typically represents state agencies in legal matters.
“I think it’s outrageous that they would take $1 million off the top of General Purpose Aid and identify it as a legal defense fund for charter schools,” said Cornelia Brown, executive director of the Maine School Management Association. “It just begs a big question as to why you’d need such a sizable legal defense fund, especially when you have in-house counsel provided by the AG’s office.”
Peter Steele, a spokesman for LePage, said Monday that the proposal is designed to guard against an instance in which Attorney General Janet Mills, a Democrat, declines to defend the commission against a legal challenge of its decision to approve or deny a charter school application.
Charter schools receive public funding but are formed and operated by parents, teachers and community leaders and are largely exempt from the rules and regulations that public school districts must follow.
Steele cited the politically charged atmosphere between charter school supporters and opponents, who want to protect funding of public schools.
He referred to Democrats’ alignment with “special interest groups” that publicly oppose charter schools. The group representing the state’s public school teachers spent heavily in the last election to support Democratic legislative candidates.
Steele said Mills has shown no evidence that her party affiliation would affect her legal judgment as the state’s top lawyer.
“To be fair, (Mills) has not said that she would not defend the commission,” Steele said. “This is literally a contingency for a worst-case scenario.”
Mills said Monday that the administration has not discussed the proposed legal defense fund with her.
“My legal representation of the state is divorced from my personal feelings in these kinds of matters,” she said.
Mills questioned the amount of the legal contingency, saying, “Are they (the administration) anticipating being in litigation? Are they anticipating doing something wrong?”
LePage also has proposed diverting $300,000 from the Attorney General’s Office to the governor’s office for legal cases in which the attorney general declines to represent the state.
Mills has said that both proposals conflict with a provision in state law that says the attorney general must represent the state whenever it’s involved in a legal proceeding.
“By common law and by statute, the (attorney general) represents all state agencies,” she said. “If for some reason I had a legal conflict, I would still have to give them written consent before they could hire outside counsel.”
Mills said her office hires outside counsel routinely to settle small legal matters. She questioned why the administration would need $1 million to defend any decisions by the Maine Charter School Commission.
“A million dollars is a lot of damn money,” Mills said. “It’s not just where the money goes to, it’s where they take it out of.”
Budget documents show that the legal contingency funding would come directly from General Purpose Aid to school districts.
Rep. Mike Carey, D-Lewiston, questioned Education Commissioner Stephen Bowen about the proposal at a budget session last week. “Why are the suits expected and how was the dollar amount chosen?” Carey asked.
Bowen offered no specifics. On Monday, a spokesman for the department referred questions to LePage’s communications staff.
In January, LePage said during a news conference that school districts had sent lawyers to Charter School Commission hearings. He also was highly critical of the commission for not quickly approving several applicants, and said some members were either intimidated or part of the public education “status quo.”
“And frankly, I think (the commissioners), if they’re afraid to do the job, if they can’t put the students first, then they ought to resign,” he said. “And quite frankly, I think we ought to go back to the Legislature and change that (commission) structure because that structure’s failing us. It’s run by the status quo.”
Jana Lapoint, chairwoman of the commission, did not return a call seeking comment.
The Attorney General’s Office now provides legal guidance to the Charter School Commission. A member of the attorney general’s staff attends most public proceedings and is consulted by the commission.
Noting that Democrats voted for the charter school law that the Legislature passed in 2011, Mills said, “I don’t think it’s that partisan an issue.”
And even if she disagrees with the LePage administration on a public policy matter, she said, her office is the state’s legal department. “(Party differences don’t) diminish our ability to represent state government,” she said.
Steele, with the governor’s office, said the charter school debate could create a situation where it could be difficult to separate policy from politics. He noted Portland Mayor Michael Brennan’s recent request for the attorney general to review the application for Baxter Academy for Technology and Science to ensure that the commission properly vetted the application.
Mills has declined to comment on Brennan’s request. Lapoint called Brennan’s request “grandstanding.”
Nonetheless, the proposal to divert state aid to school districts for the legal defense of charter schools could add to an escalating political debate.
Steve Mistler can be contacted at 620-7016 or at