Are Maine school board members supposed to act on behalf of the town that elected them, or as state officers carrying out state law?
Subject
Whether the Maine Department of Education needed to develop additional guidance on school board members' responsibilities to their communities. Memo from Assistant Attorney General Sarah Forster to Education Commissioner A. Pender Makin, dated January 2, 2020.
Plain-English summary
Two state legislators, Senator Millett and Representative Kornfield, wrote to the Department of Education in April 2019 asking for guidance on how school boards should balance their responsibilities to state law against responsiveness to their local communities. The concern came from training materials that the Maine School Boards Association (MSMA) and the law firm Drummond Woodsum had developed. The DOE Commissioner asked the AG's office for a legal review.
Assistant AG Sarah Forster reviewed the training materials and concluded no additional guidance was needed. Her core legal point: under the Maine Constitution, the Legislature controls education. School boards are creatures of statute, with their authority and duties laid out by the Legislature. Once elected, school board members are not representatives of their towns the way state legislators are representatives of their districts. They are members of an executive body that runs the school administrative unit under state law.
Forster grounded that conclusion in Shaw v. Small, a 1924 Maine Law Court decision that called the school committee "a public board" whose members "are public officers deriving their authority from the law and responsible to the state for the good faith and rectitude of their acts." Shaw arose from a town that didn't want to admit an orphan whose guardian lived in the town, on the theory that too many state wards were being placed there. The Law Court ruled that the committee had to follow the law on residency, regardless of how the town felt about the fairness of the law to the town.
Forster cited a 2006 article by Donald Kopp explaining the same point: school boards are executive bodies, not legislative ones. Their job is to apply the law to govern the school administrative unit, not to debate whether the law is fair to their community.
On the related question of public participation at school board meetings, Forster pointed to the recent enactment of Chapter 293, An Act to Encourage Public Participation in School Board Meetings, which she said put concerns to rest. She had reviewed the MSMA model policy and found it consistent with the new statute.
The Department of Education shared the memo with the MSMA executive committee on January 4, 2020.
Currency note
This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Background and statutory framework
Maine school boards are governed by Title 20-A of the Maine Revised Statutes, which lays out the structure of school administrative units and the powers and duties of the boards that run them. The Maine Constitution places control over education with the Legislature, and the school board statutes implement that control through detailed rules on everything from residency and curriculum to budgeting and personnel.
In 2019, the Legislature passed Chapter 293, An Act to Encourage Public Participation in School Board Meetings. The opinion notes that this act was adequate to address public-participation concerns at school board meetings. The Maine School Management Association (referred to as MSMA in the memo, also known as Maine School Management Association or Maine School Boards Association in different contexts) developed a model policy that the AG reviewed and found compliant.
The historical anchor of the opinion is Shaw v. Small, 124 Me. 36 (1924). The school committee in that case had refused to admit a child whose guardian lived in the town, arguing that the town was bearing too many state wards as an "unequal burden." The Law Court ordered the child admitted, holding that the committee was bound to apply the residency law regardless of the committee's view about the law's fairness to the town. The opinion treats Shaw as still good law and not limited to its facts.
The opinion also references a 2006 article by Donald Kopp distinguishing legislative bodies (representatives speaking for districts) from executive bodies (officers applying enacted law). School boards fall in the executive category.
Historical analysis: what the opinion said
What the AG concluded for school board members at the time
Members of Maine school boards, at the time of this opinion, were public officers serving on an executive body that ran a school administrative unit under state law. They were not town representatives in any constituent-services sense. Once elected, they were "responsible to the state" (per Shaw v. Small) for the faithful application of education law, regardless of whether the law's results matched what the town wanted. A board member who treated their role as advocating their town's preferred policy choices over compliance with state law was misunderstanding the position.
Members could and did take public input, including through the new public-comment process under Chapter 293, but the input did not change the underlying obligation to apply state law as enacted by the Legislature.
What the AG concluded for the Department of Education at the time
The DOE did not need to issue additional guidance on school board responsibilities. The MSMA training materials, reviewed by the AG's office, were already consistent with the legal framework. The 2019 public-participation law (Chapter 293) and the corresponding MSMA model policy already addressed the public-comment piece. There was no gap requiring DOE intervention.
What the AG concluded for legislators considering the question at the time
The legislators who raised the issue (Senator Millett and Representative Kornfield) were told, in effect, that the existing law already answered their concern. School boards' "responsibilities for, and responsiveness to, their respective communities" are framed by Title 20-A and the public-comment statute. The legal status of school boards as state-law-applying executive bodies was clear under Shaw v. Small, and the AG saw no need to revise the framework.
What the AG concluded for parents and community members at the time
Parents and community members had a statutory right to public comment at school board meetings under Chapter 293, with the MSMA model policy implementing that right. They could press their views in those forums. But the public-comment process did not give them authority to direct the board to depart from state law in ways that might suit local preferences. Where state law required a particular result on residency, curriculum mandates, or other state-level rules, the board was required to follow that law.
Common questions
What does it mean to call school boards "creatures of statute"?
It means the boards' authority and duties come entirely from statutes the Legislature enacts. They are not constitutional bodies with independent powers. Whatever Title 20-A and related statutes say a board can do, that is what the board can do. Whatever the law requires, the board has to do.
What did Shaw v. Small actually involve?
A 1920s-era town wanted to refuse to enroll a child whose guardian lived in the town. The town's school committee felt that too many state wards were being placed in the town and that this created an unfair burden. The Law Court ordered the child admitted, holding that the committee had to apply the residency law as written and was not free to refuse compliance based on a sense of fairness to the town. The case is cited for the broader principle that school committee members are public officers responsible to the state, not town agents.
Did this opinion say school boards have to ignore their communities?
No. Boards take public input, including through the public comment process under Chapter 293. The opinion says the input does not give the board authority to override state law. A board member listens to constituents and applies state law; those are not in tension as long as the board doesn't try to use community pressure to justify departing from required state-law results.
Was Chapter 293 the answer to public-participation concerns?
According to the AG memo, yes, at least for the immediate concerns. Chapter 293 (An Act to Encourage Public Participation in School Board Meetings) and the MSMA model policy were treated as adequate. Whether subsequent legislation has changed that should be checked against current law before relying on it.
What was the underlying tension that prompted the legislators' question?
The opinion does not explicitly say, but the framing (training materials about how boards address responsibilities to communities) and the timing (April 2019 letter, January 2020 response) suggest a moment when some board members or community members felt boards were too remote from local concerns. The AG's response was essentially "the legal framework is what it is, and the new public-comment law fills the participation gap."
Is this opinion still binding?
AG opinions are persuasive authority, not binding precedent. Shaw v. Small is a Law Court decision and remains binding on Maine courts unless and until overruled. The statutes the AG cited (Title 20-A and Chapter 293) may have been amended, so anyone relying on this analysis today should check the current versions.
Why does the Maine Constitution put the Legislature in charge of education?
Article VIII, Part 1, Section 1 of the Maine Constitution provides for state-level legislative control over education. The opinion cites this as the foundational reason school boards are statutory rather than constitutional bodies and why their authority flows from the Legislature.
Citations
The opinion's central authorities, drawn directly from its text:
- Maine case: Shaw v. Small, 124 Me. 36, 41 (1924) (school committee members are public officers responsible to the state, not town agents).
- Session law: Chapter 293, An Act to Encourage Public Participation in School Board Meetings (Maine session laws, referenced as the recent public-participation enactment).
- Secondary: 2006 article by Donald Kopp, distinguishing executive school boards from legislative representative bodies.
Source
- Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
- Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2020/ag_20200102.pdf
Original opinion text
MAINE STATE LEGISLATURE
The following document is provided by the
LAW AND LEGISLATIVE DIGITAL LIBRARY
at the Maine State Law and Legislative Reference Library
http://legislature.maine.gov/lawlib
Reproduced from scanned originals with text recognition applied
(searchable text may contain some errors and/or omissions)
6 State House Station FAX: 287-3145
OFFICE OF THE Augusta, ME 04333-0006 email:
Phone: 626-8800 [email protected]
ATTORNEY GENERAL
Memorandum
TO: A. Pender Makin, Commissioner
Maine Department of Education
FROM: Sarah Forster, Assistant Attorney General
DATE: January 2, 2020
SUBJECT: School Boards
Senator Millett and Representative Kornfield sent you a letter on April 9, 2019 requesting
that "the Department, in consultation with the Attorney General's Office, develop guidance and
provide direction to school boards on current state law and the responsiveness of school boards
to the public." I understand that this request comes from a concern about training materials
developed by the Maine School Boards Association and the law firm of Drummond Woodsum
and specifically how they address school boards' "responsibilities for, and responsiveness to,
their respective communities." After reviewing materials from Drummond Woodsum, I am not
sure that any additional guidance or direction from you is needed.
The Maine Constitution affords control over education to the Maine Legislature. School
boards are creatures of statute, with their duties and responsibilities described therein. The nexus
of the concern about school boards' "responsibilities for, and responsiveness to, their respective
communities" appears to be the statement, contained in a decision of Maine's Law Court that
...the [school] committee acts as a public board. It in no sense represents the
town. Its members are chosen by the voters of the town, but after election, they
are public officers deriving their authority from the law and responsible to the
state for the good faith and rectitude of their acts.
Shaw v. Small, 124 Me. 36, 41 (1924). Shaw's instruction that a school board is responsible for
faithfully applying the law, as opposed to considering the fairness of the law to their
municipality, remains good law, and is not limited, as some have suggested, to its facts or to its
(Footnote 1: In Shaw, the issue was the right of an orphan to attend school in the town where his guardian resided. The school committee denied him access to school because, among other things, they felt that too many wards of the state were being placed in their town, which was an "unequal burden that the town should not be obligated to bear." The Law Court, in ordering the student be admitted to school, held that the school committee was obligated to follow the law with respect to residency, not their views about the fairness of the law to their town.)
time. As explained by Attorney Donald Kopp in a 2006 article, unlike a representative body that
is charged with legislative functions, a school board is an executive body with the collective
responsibility of executing the laws enacted by the Legislature and governing the school
administrative unit over which they are responsible. Thus, once elected, members of a school
board function not as a representative of the town or ward that elected them, in the way that a
member of the Legislature acts as a representative of his or her district, but as a member of an
executive body that oversees a system of public education. The training materials provided to
school boards appear to be consistent with that view: they prepare school board members to
govern school administrative units in accordance with the governing law.
With respect to a related issue, public participation at school board meetings, the recent
enactment of Chapter 293, An Act to Encourage Public Participation in School Board Meetings,
puts to rest any concerns about the requirement that school boards receive public comment at
their meetings. I have reviewed the model policy drafted by MSMA and believe that it fully
complies with the public comment requirement.
SAF/pc
Maine
Department of
Education
Date: January 5, 2020
Source of Report: Letter from the Committee re: LD 63
Topic: School Board Communication
Context
In a letter from April 2019, the Education Committee chairs respectfully requested that the
Department of Education, in consultation with the Attorney General's Office, develop guidance
and provide direction to school boards on current state law and the responsiveness of school
boards to the public.
Actions
Assistant Attorney General Sarah Forster reviewed the Maine Constitution and model policy
drafted by MSMA and sent the Department of Education a memorandum outlining her findings.
Commissioner Makin shared the memorandum with the executive committee of the Maine
School Boards Association on January 4, 2020.
Findings
Memorandum is attached.
Contact:
Pender Makin
Commissioner
Maine Department of Education