Charter School Technical Advisory 03-1: Horace Mann Charter Schools

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The purpose of this technical advisory is to interpret, clarify, and provide guidance on the application of the charter school statute (M.G. L. c. 71, §89) and the charter school regulations (603 CMR 1.00) to Horace Mann charter schools. This technical advisory updates the answer to question no. 7 in schools technical advisory no. 98-2.

Introduction

Horace Mann charter schools were authorized by a July 1997, revision of the charter school statute (M.G.L. c. 71, § 89). This new type of charter school is defined in the statute as follows:

The regulations on charter schools (603 CMR 1.00) similarly offer the following definition of Horace Mann charter schools:

Operating funds for a Horace Mann charter school come directly from the school district in which the school is located. (Horace Mann charter schools are eligible for state and Federal start-up grants.) An application for a Horace Mann school will specify a total budget allocation the school committee has approved for the school. Each year thereafter, the Board of Trustees of a Horace Mann school will submit a budget request for the following fiscal year to the superintendent.

Under the law, a Horace Mann charter school's budget allocation shall be consistent with the allocation to other public schools in the district. A school may appeal a disproportionate budget allocation to the Commissioner of Education, who, according to the law, "shall determine an equitable funding level for the school and shall require the school committee to provide such funding." (G.L. c. 71, § 89(x))

The charter school statute makes few distinctions between Horace Mann charter schools and Commonwealth charter schools. For Horace Mann schools, however, the statute stipulates the following:

1. The school committee and local union must approve a charter application;

2. Teachers must continue to be members of the union;

3. The school committee of the school district in which the school is located shall remain the employer for collective bargaining purposes under chapter 150E (the state law regarding public employee labor relations);

4. The minimum salary and benefit requirements as stipulated in the district's collective bargaining agreement must apply;

5. All union and school committee work rules apply to the extent specified in the charter;

6. The school's funding must be appropriated by the district at a level that is consistent with the allocation to other schools in the district;

7. A school must give enrollment preference to students actually enrolled in said school on the date the charter application was filed, their siblings, and then to other students enrolled in the public schools of the district where the school is located;

8. The school committee and local union must approve a charter renewal application; and

9. The school committee must develop a plan to disseminate innovative practices of said charter school to other public schools within the district.

The local school committee has responsibility for evaluating and disseminating innovative practices of a Horace Mann charter school. The Board of Education has responsibility for oversight and evaluation of the performance of a Horace Mann charter school. Under law and regulations, these schools must develop an accountability plan, file annual reports and independent financial audits with the state, and be subject to the same evaluation process as Commonwealth charter schools. A Horace Mann charter school should also send copies of annual reports, audits, and evaluations to the local school committee.

Except for the approval of its annual budget, the operation of a Horace Mann charter school should be independent of the local school committee. There are, however, several situations in which the collective bargaining agreement or state law may require the superintendent, rather than the school's board of trustees or leaders, to make final decisions, e.g. hiring or firing of teachers or principals.

In regard to specific areas that are not addressed by this advisory, the Department's general guidance is for Horace Mann charter schools to be structured in a way that allows for independence from the school district whenever it is possible to do so. Such independence should promote accountability and innovation, while encouraging cooperation and collaboration between a Horace Mann school and other public schools in the district.

Technical Advisory (98-2): Questions & Answers

1. What constitutes school committee and local teacher union approval of a Horace Mann charter?

   A Horace Mann charter school application must have the approval of the school committee and the local teachers' union of the district in which the school would be located. A statement certifying this approval signed by the School Committee Chairperson and the local teachers' union president must accompany a valid Horace Mann application on the date such applications are due to the Department of Elementary and Secondary Education. A Horace Mann charter application must specify the total annual budget amount the charter school will receive from the local district, as well as what provisions of the district's collective bargaining agreement will apply to teachers in the Horace Mann charter school. Once an application is submitted to the Department, and the Board of Education grants a charter based on the application, a school committee or local teachers' union cannot rescind its approval of said application. A charter may be amended with the approval of the Commissioner of Education, who, according to regulation, "shall consult with the school committee and local teachers' union on amendments that would substantially change the program or governance of a Horace Mann charter school."

2. How much funding per student should Horace Mann schools receive?

   Neither the law nor the regulations specify an amount per student that Horace Mann schools must receive. The school's annual appropriation will be an amount agreed upon by the school and the school committee. As previously noted, a Horace Mann charter school should receive an allocation that is consistent with the allocation to other public schools in the district, and it may appeal a disproportionate budget allocation to the Commissioner of Education. The Department encourages Horace Mann charter schools and districts to begin with the average cost per student in the district or in comparable schools in the district, and then deduct appropriate amounts for services that the school will "purchase" from the district. One such service, liability insurance, should be provided by the district for the school and its trustees. Other services could include payroll, special education services, food services, or procurement. Other factors that must be considered, of course, are the salary and benefit requirements, as stipulated in the district's collective bargaining agreement. Districts will be asked to report on their end-of-year report cash payments to Horace Mann charter schools as well as the dollar value of in-kind services provided.

3. How should schools receive/control their funds?

   The statute stipulates that a Horace Mann school's budget allocation "shall be available for expenditure by the board of trustees of such school for any lawful purpose without further approval by the superintendent or school committee." (G.L. c. 71, § 89(y)) As a result, Horace Mann charter schools should have direct control of their operating funds. This means districts should transfer a school's budget allocation to an account controlled solely by trustees and officers of the charter school. Horace Mann charter schools must have their own Federal taxpayer identification number if they open their own bank account. When or how often operating funds are transferred to a charter school should be determined by the charter school and the school district.

4. "By what date should a Horace Mann school submit its annual budget request to the school district?

   The regulations dictate that a Horace Mann charter school "shall submit a budget request annually, in accordance with the budget schedule of the local school district and no later than April 1, to the superintendent and school committee of the district in which the charter school is located." The statute further requires that the school committee act on such budget request in conjunction with its actions on the district's overall budget. As a result, the superintendent should establish a deadline for receipt of a school's budget request that is both reasonable and consistent with what is expected of other schools and departments within the district.

5. Should schools apply directly for entitlement and/or competitive grants?

   In accordance with the charter school statute, a Horace Mann charter school may apply to the Department directly for Federal and state program funds. Such funds may be used for any lawful purpose, consistent with the terms of the grant program, without prior approval from the superintendent or school committee. Grants for which a Horace Mann charter school may be eligible include entitlement grants and competitive grants.

   Current entitlement/allocation grants include programs such as (Title I, IDEA, Perkins Act, Title VI, Eisenhower, and Safe and Drug-Free Schools). Through the funding formulas specific to each grant program, each school district has an entitlement or allocation based on its count of eligible students in the previous school year.

   In the first year that a Horace Mann charter school operates, the entitlement or allocation has already been determined for the school district as a whole, based on the data it submitted for the previous school year. Consequently, in the first year that a Horace Mann charter school is in operation, the entitlement or allocation grant will be made to the school district as a whole. The Horace Mann charter school leader and the superintendent should determine together how the students in the charter school will benefit from the entitlement/ allocation funds awarded to the district.

   In the second and subsequent years of a Horace Mann charter school's operation, the Department will calculate an entitlement/allocation for the school as well as for the district, based on prior year student data. At that point, the Horace Mann charter school may choose either to apply for entitlement/allocation funds itself, or it may assign its entitlement to the school district and make arrangements with the superintendent so that the charter school students will benefit from the funds. The Department's booklet, Grants for Schools: Getting Them and Using Them - A Procedural Manual, provides the assignment form (Schedule A) as well as additional information about the grants process.

   Competitive grant programs do not involve formula-driven allocations to each school district. Consequently, starting in its first year of operation, a Horace Mann charter school has a choice. The charter school may apply to the Department directly for a competitive grant for which it qualifies, and may use the funds for purposes consistent with the grant, without prior approval from the superintendent or school committee. Alternatively, if the charter district apply collaboratively for and receive a competitive grant, the charter school may receive grant funds (or services funded through the grant) from the district, as part of its budget allocation.

6. What requirements must Horace Mann charter schools follow when procuring goods and services?

   Because Horace Mann charter school employees are, for some purposes, employees of municipal entities, and because the schools are funded directly by municipalities, they are by definition subject to the procurement requirements of G.L. c. 30B, the Uniform Procurement Act. Horace Mann charter schools must keep accurate accounts and obtain and file an independent audit for the previous fiscal year on or before January 1 of each year with the Department of Elementary and Secondary Education and the State Auditor. The procurement officer of each Horace Mann charter school must participate in the public purchasing official certification program conducted by the Office of the Inspector General in order to earn a Massachusetts public purchasing official certificate. A Horace Mann charter school may procure goods and services through a district's procurement office.

7. May members of the local school committee serve on the Board of Trustees of a Horace Mann charter school?

   Yes. The restrictions contained in the Commonwealth's conflict of interest statute, G.L. c. 268A, §§ 4, 6, 17, 23, and the charter school statute, however, may restrict the activities of such individuals and require that they not participate in the consideration of, and decisions on, a number of matters that usually come before a Board of Trustees. For example, among other things, the Commonwealth's conflict of interest statute restricts public employees from participating in any matter in which he or she has a financial interest, from acting as an agent for anyone other than the public employer regarding any matter in which the employer has a direct and substantial interest, and from acting in any manner that would lead a reasonable person to conclude that anyone can improperly influence them. Trustees who are also school committee members of the school district should seek the advice of the State Ethics Commission and their local counsel regarding these restrictions. The charter school statute specifically states that "Horace Mann charter schools shall be operated and managed by a board of trustees independent of the school committees which approve said schools." As a result, school committee members should not participate to the extent that such participation may undermine or compromise the independence of the board of trustees.

8. May the superintendent of schools for the local school district, a principal of a school subject to the control of the local school committee, or a teacher in the local school district serve on the Board of Trustees of a Horace Mann charter school?

   Yes. The restrictions contained in the Commonwealth's conflict of interest statute, G.L. c. 268A, §§ 4, 6, 17, 23, and the charter school statute, however, may restrict the activities of such individuals and require that they not participate in the consideration of, and decisions on, a number of matters that usually come before a Board of Trustees. For example, among other things, the Commonwealth's conflict of interest statute restricts public employees from participating in any matter in which he or she has a financial interest, from acting as an agent for anyone other than the public employer regarding any matter in which the employer has a direct and substantial interest, and from acting in any manner that would lead a reasonable person to conclude that anyone can improperly influence them. Trustees who are also employees of the school district should seek the advice of the State Ethics Commission and their local counsel regarding these restrictions.

9. May other employees and officials of the municipality in which a Horace Mann charter school is located serve on the Board of Trustees?

   Yes, for the most part. As a general matter, other employees and officials of the municipality in which a Horace Mann charter school is located may serve on the Board of Trustees. As with teachers in the local school district who also serve on the Board of Trustees of a Horace Mann charter school, the restrictions contained in G.L. c. 268A, §§ 4, 6, 17, and 23, discussed in response to Question 8, may restrict the activities of such employees and officials. Municipal employees and officials should seek the advice of the State Ethics Commission and their local counsel.

10. May the principal, teachers, and other employees of a Horace Mann charter school serve on the Board of Trustees?

    Yes. The participation of employees of a Horace Mann charter school does not compromise the ability of a Board of Trustees to operate and manage a charter school independent of the school committee governing the school district in which the charter school is located. Charter schools, however, should limit the number of employees who also serve as members of its Board of Trustees. If the membership of a Board of Trustees becomes synonymous with the staff of the charter school it operates and manages, it will hinder the Board's ability to operate and manage the charter school effectively. Additionally, the restrictions contained in G.L. c. 268A, §§ 4, 6, 17, and 23, discussed in response to Question 8, may restrict the activities of such employees. Charter school employees should seek the advice of the State Ethics Commission and their local counsel regarding these restrictions.

11. Who employs the staff (principal, teachers, support staff) of a Horace Mann charter school? Who has authority over hiring, evaluation and dismissal of staff at a Horace Mann charter school?

    Several provisions of the charter school statute support the view that the board of trustees employs the charter school staff, and has authority over hiring, evaluation and dismissal. First, under G.L. c. 71, § 89 (b), a Horace Mann charter school is "operated and managed by a board of trustees independent of the school committee." The responsibility to "operate and manage" a school generally carries with it authority over hiring, evaluation and dismissal of school staff, especially the principal, to whom a board delegates significant responsibility.

    Second, the board of trustees is "considered the public employer for purposes of tort liability" under Chapter 258. (§ 89 (aa)) If the board of trustees is potentially liable for acts or omissions of charter school staff, that must mean the board has control over the hiring, discipline and dismissal of its employees.

    Third, the statute requires the charter school application to specify, among other things, "the number and qualifications of teachers and administrators to be employed." (§ 89 (f)(7)) This suggests that the charter school, through its board of trustees, has autonomy over hiring decisions.

    The charter school statute, however, does not expressly state that the board of trustees is responsible for hiring, evaluation, discipline and dismissal of charter school staff. Section 89 (aa) specifies that "in the case of a Horace Mann charter school, the school committee of the school district in which the Horace Mann charter school is located shall remain the employer for collective bargaining purposes under chapter 150E." In addition, it is not clear whether the charter school statute was intended to supersede G.L. c. 71, § 59B, under which "the superintendent of a school district shall appoint principals for each public school within the district at levels of compensation determined in accordance with policies established by the school committee."

    Section 59B further provides that "principals employed under this section shall be responsible, consistent with district personnel policies and budgetary restrictions and subject to the approval of the superintendent, for hiring all teachers, athletic coaches, instructional or administrative aides and other personnel assigned to the school, and for terminating all such personnel, subject to review and prior approval by the superintendent and subject to the provisions of this chapter."

    Finally, the charter school statute, at § 89 (t), provides that G.L. c. 71, §§ 41 and 42 will apply to Horace Mann charter schools. Among other things, §§ 41 and 42 concern professional teacher status, dismissal and arbitration procedures and rights. With respect to dismissal, § 41 states, "Only a superintendent may dismiss a principal," and "A principal may dismiss or demote any teacher or other person assigned full-time to the school, subject to the review and approval of the superintendent."

    The ambiguities in the charter school statute may be clarified through legislative amendment. Until that happens, it is necessary to reconcile the various provisions of state law in a way that protects statutory rights while enabling the Horace Mann charter schools, through their boards of trustees, to replicate, where possible, the autonomy, innovation and accountability that are central to the Commonwealth charter school model. To that end, we recommend the following approach to employment matters:

    1. Hiring and dismissal of the principal: The board of trustees should select the principal and set his or her salary. The superintendent must make the appointment and approve the salary. And shall not unreasonably withhold approval of the appointment. Only the superintendent may dismiss the principal (G.L. c. 71, § 41), but the dismissal should be based on a recommendation by the board of trustees.

    2. Hiring and dismissal of teachers, aides and other personnel assigned exclusively to the school: The principal of the Horace Mann charter school hires and may dismiss teachers, aides and other personnel assigned exclusively to the school, subject to review by the board of trustees and approval by the superintendent (per § 59B and §§ 41 and 42). The superintendent shall not unreasonably withhold approval. For employees covered by collective bargaining, the provisions of the local collective bargaining agreement(s) will apply to the extent specified in the charter.

    3. Evaluation of the principal, teachers and other school staff: The board of trustees evaluates the performance of the principal, and the principal evaluates the performance of the teachers and other staff at the school. The performance standards and evaluation procedures are specified by state law (G.L. c. 71, § 38 and 603 CMR 35.00), by the applicable portions of the collective bargaining agreement (for those employees covered by collective bargaining), and by the terms of the charter.

12. Are non-teaching staff required to be members of a union?

    Non-teaching staff are required to be members of a union if the position is covered in a collective bargaining agreement with the district. For example, custodial staff in a school district are usually covered by a collective bargaining agreement with the school committee. That agreement remains in effect and covers staff at the charter school. A school district, of course, may negotiate with any bargaining unit for waivers or exemptions for Horace Mann school employees.

13. Must teachers, principals, and other personnel employed at a Horace Mann charter school be certified by the Department of Elementary and Secondary Education?

    Yes. Because employees of a Horace Mann charter school are essentially employees of a school district, state law requires them to be certified for their respective positions.

14. Must Horace Mann charter schools be located in district school buildings?

    No. The law does not require Horace Mann charter schools to be located in district buildings per se, but it does require a Horace Mann charter school to be located within the district and to obtain the approval of the local school committee relative to any financial obligation for which the local school district shall become legally obligated. Under G.L. c. 71, § 89(j), a Horace Mann charter school must have the approval of the local school committee before acquiring "real property, from public or private sources, by lease, lease with an option to purchase, or by gift, for use as a school facility." The approval of the school committee should not be unreasonably withheld. Further, under the law, a Horace Mann charter school must receive a budget allocation consistent with the allocation of other public schools in the district, and should, therefore, be provided with facilities or the funds with which to pay for facilities. As a result, if a Horace Mann charter school is not to be located in an existing district facility, the school committee must share responsibility for findings, and must work with the Horace Mann school's board of trustees to secure, an adequate facility for the school.

15. May a district spend school building assistance funds on a building occupied by a Horace Mann school? May a Horace Mann charter school occupy a facility built or previously renovated with such funds?

    Yes. A district may spend school building assistance funds on buildings occupied by a Horace Mann charter school. A school also may occupy a facility built or previously renovated with school building assistance funds, provided that such use is generally consistent with the district's application for such funds.

16. Do district rules apply to Horace Mann charter schools?

    Only those district rules specified in the charter apply to a Horace Mann charter school. The Board of Trustees is responsible for the educational program and its implementation consistent with the charter, as well as state laws and regulations. For example, a Horace Mann charter school must adopt a student code of conduct, which may be the same as, or different from, the district's code of conduct. Enrollment in a Horace Mann charter school, as an another example, must be done in accordance with the law and regulations, which stipulate that "charter schools shall be open to all students, on a space available basis, and shall not discriminate on the basis of race, color, national origin, creed, sex, ethnicity, sexual orientation, mental or physical disability, age, ancestry, athletic performance, special need, or proficiency in the English language or a foreign language, and academic achievement." (G.L. c. 71, § 89(l))

17. Do district or state testing requirements apply to Horace Mann charter schools?

    Horace Mann charter schools must administer all applicable state-mandated tests, such as MCAS. While a charter school is under no obligation to follow district testing requirements, it may find it beneficial in demonstrating the academic progress of its students to continue administering the standardized tests used by the district. Plans for the formal assessment of the academic progress of students should be specified in a charter application.

18. Are Horace Mann charter school students considered to be enrolled in the district?

    In many cases, yes, Horace Mann students are considered to be enrolled in the district. Districts, however, should not include these students in their own enrollment reports to the Department of Elementary and Secondary Education. Enrollment data for Horace Mann schools will be reported to the Department directly by each Horace Mann school, as required by law. For calculation of foundation enrollment and foundation budget, the Department will merge the data so that the district will receive full credit for these students.

19. Who grants diplomas to graduating seniors of a Horace Mann charter school: the school or the district?

    A Horace Mann charter school should adopt its own graduation requirements, and it may grant its own diplomas to students who meet those requirements. Nothing in the law, however, prevents a district from recognizing a Horace Mann charter school's program for the purpose of granting diplomas to the school's graduates. In such cases, the charter school retains responsibility for the education of its students, but the district may expect the school's graduates to meet district graduation requirements before awarding diplomas to them.

20. In what ways must a Horace Mann charter school be part of a district and in what ways must it be independent?

    As described above, there are several significant ways in which the law considers the school to be part of the district, namely: hiring and firing of school personnel, employment for purposes of collective bargaining; school facility; funding; and the dissemination of innovative practices. In other aspects, especially regarding its educational program, the Horace Mann charter school should be functionally distinct from the district. Horace Mann charter schools are expected to collaborate with other public schools in the district and work cooperatively with a superintendent and other district personnel.

Last Updated: January 30, 2019