MAYOR OF HOLYOKE vs. BOARD OF ALDERMEN OF HOLYOKE & others. [Note 1]

WILKINS, J. The basic question in this case is whether the board of aldermen of the city of Holyoke has lawfully appropriated for school purposes during the 1981 fiscal year an amount in excess of the amount that, but for such an appropriation, could be available for school purposes under the so called "tax cap" legislation. St. 1979, c. 151.

The Holyoke school committee, as a "governing body" defined in St. 1979, c. 151, Section 2, had no general authority to

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approve a budget for fiscal year 1981 "which [was] greater than [104%] of the budget approved by [it] for the preceding fiscal ... year." St. 1979, c. 151, Section 3. However, the school committee, by a two-thirds vote, could, and did, submit a request to increase the budget limit by a specified amount and that request could "be approved, in whole or in part, by a two-thirds vote of the local appropriating authority." St. 1979, c. 151, Section 6. For a city, the "local appropriating authority" is defined as "the council, with the mayor's approval when required by law." St. 1979, c. 151, Section 2. It is this definition that brings us to the heart of the basic issue, namely, whether in Holyoke the mayor's approval of the school committee's request to exceed the "tax cap" was required by law. The board of aldermen, which is the equivalent of a city council, purported to approve by a two-thirds vote the school committee's request to exceed the "tax cap." The mayor, however, did not recommend to the board of aldermen that it appropriate funds for school purposes in excess of the "tax cap," although he did transmit the school committee's request to do so to the clerk of the board of aldermen prior to that board's purported vote to appropriate the funds requested by the school committee.

We conclude that the action of the board of aldermen in voting to exceed the statutory "tax cap" on school department appropriations was lawful and that the mayor's approval of the school department's request to exceed the "tax cap" was not "required by law" within the meaning of St. 1979, c. 151, Section 2. On September 22, 1980, in order to assist the city in the calculation of its tax rate for the 1981 fiscal year, we entered an order remanding the case to the single justice for entry of a judgment consistent with our conclusion. [Note 2]

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The case is here on a reservation and report by a single justice on the pleadings and a statement of agreed facts. We summarize the facts. In January, 1980, the school committee submitted a budget for the 1981 fiscal year to the mayor. The budget exceeded the "tax cap" by approximately $741,000. The mayor returned the budget to the school committee, pointing out the 104% limitation of the "tax cap" and the necessity of obtaining approval from the board of aldermen if the budget should exceed the "tax cap." On February 20, 1980, the school committee made relatively minor reductions in its proposed budget and voted unanimously "to ask the full Board of Aldermen for their support in waiving the tax cap." By a further vote, on February 25, the school committee voted unanimously to request that the mayor transmit the full school budget as approved by them on February 20 to the board of aldermen and that the board of aldermen approve "an exemption from the `tax cap' since the Budget exceeds the same by $706,007.82." A copy of this vote was sent to the mayor by letter dated February 29, and on that same day, without recommendation, the mayor gave a copy of the letter and the budget to the clerk of the board of aldermen.

The mayor subsequently submitted the city's entire 1981 fiscal year budget to the board of aldermen at its meeting of March 18. He included and recommended for school purposes an amount that was only 104% of the total of the school budget for the 1980 fiscal year. On April 16, the board of aldermen voted, by 13 to 2, to "[g]ive relief to the School Department of the 4% Tax Cap and adopt the School Budget ... submitted by the School Committee." On May 2, following advice from the city solicitor's office that its earlier vote was incorrect in form, the board of aldermen voted on the school department budget, 10 to 5, "to increase the budget limit for fiscal 1981 ... by $706,047.82 so that the budget limit as so increased will be $12,672,015.24. [Note 3] This vote was referred to the mayor who,

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on May 6, 1980, signed the following statement: "As part of the Local Appropriating Authority, I hereby disapprove of a waiver of the tax cap under provisions of Chapter 151 Acts of 1979."

The mayor thereafter commenced this action seeking a declaration that the votes of the board of aldermen purporting to approve the school committee's request to exceed the "tax cap" were invalid and that the mayor must "initiate" any appropriations for school purposes in excess of the "tax cap."

The "tax cap" legislation (St. 1979, c. 151) gave the mayor no authority to act that he did not have prior to the enactment of that legislation with respect to school department appropriations. The question, then, is what is meant by the provision in St. 1979, c. 151, that the mayor's approval of a school committee's request to exceed the "tax cap" is necessary "when required by law."

School committees traditionally have had authority over their own budgets. See Bell v. North Reading, 363 Mass. 505, 510 (1973); Casey v. Everett, 330 Mass. 220, 222 (1953); Ring v. Woburn, 311 Mass. 679, 683 (1942); Leonard v. School Comm. of Springfield, 241 Mass. 325, 329 (1922). By law, prior to the "tax cap" act, barring any special legislation, a municipal appropriating authority was required to appropriate the funds that its school committee designated as necessary for school purposes. G. L. c. 71, Section 34. See Pirrone v. Boston, 364 Mass. 403, 407 (1973); Bell v. North Reading, supra; Ring v. Woburn, supra at 691; Decatur v. Auditor of Peabody, 251 Mass. 82, 89 (1925). If the requested amount were not appropriated, legal action (traditionally in the form of a taxpayers' suit) could be taken to obtain the requested funds. G. L. c. 71, Section 34. The fact that mayors have had the power by statute to make recommendations concerning the municipal budget, and city councils (or boards of aldermen) could not appropriate

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amounts in excess of the mayors' recommendations (see G. L. c. 44, Section 32) has consistently been rejected as a valid ground for denying a school committee the amount it has requested as necessary for public education. See Casey v. Everett, supra at 222, and cases cited; Hayes v. Brockton, 313 Mass. 641, 649-650 (1943); Decatur v. Auditor of Peabody, supra at 86-88; Leonard v. School Comm. of Springfield, supra at 331-332.

It was thus the mayor's obligation, with minor exceptions for items not involved in this case, to submit the school budget to the board of aldermen. Although, prior to the enactment of St. 1979, c. 151, the mayor had the power not to recommend the amount requested, any deficiency in his recommendation could have been made up by an appropriate court order. Under the new "tax cap" legislation, however, if a mayor does not recommend any amount requested by the school committee in excess of 104% of the prior year's budget, a court order simply to restore the amount requested would not be appropriate because a two-thirds vote of the city council or board of aldermen is required to exceed the "tax cap." All that a court can do in such a case today is to order the mayor to submit the school committee's budget request in excess of the "tax cap" to the city council or board of aldermen for its action.

In the circumstances before us, no such order was required because the mayor did transmit the school committee's request for a waiver of the "tax cap" to the board of aldermen and that board approved it by a two-thirds vote. We think the absence of a recommendation from the mayor should not be fatal to the validity of the vote of the board of aldermen. In submitting the school committee's budget to the board of aldermen, the mayor merely did what a court could have ordered him to do. G. L. c. 71, Section 34. The board of aldermen acted as it eventually would have had the right to act after a court-ordered submission of the school committee's request. It would be a triumph of form over substance for us to hold that because the mayor had the power, but not the right, to decline to include the school

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committee's budget in his recommended budget, a suit must now be brought to compel the mayor to make a new submission to the council. The mayor's approval of the school committee's recommendation was not "required by law" because in the final analysis the law does not require the mayor's approval in order to make available the funds requested by the school committee. [Note 4]

Accordingly, we remanded the case to the single justice for entry of a judgment in the form set forth in the second footnote of this opinion. [Note 5]