After Vermont consolidated school districts under Act 46 in 2015 and the State Board of Education involuntarily merged some districts that voted not to merge, can the towns in those involuntarily-merged districts now use 16 V.S.A. § 724 to vote to withdraw from the merger?
Plain-English summary
The Town of Stowe and the State Board of Education's chair, Oliver Olsen, asked the AG to opine on whether Stowe can vote to withdraw from the Lamoille South Unified Union School District. The Unified District was created involuntarily by Board order in 2018 under Act 46, the 2015 statute that consolidated Vermont school districts. Stowe and the other member towns (Elmore and Morristown) voted in favor of withdrawal. The question: does 16 V.S.A. § 724 give the Board jurisdiction to approve a withdrawal from an involuntarily-formed district?
The AG declined to issue a formal opinion (because litigation was likely), but provided a comprehensive analysis. The plain-language answer:
- Section 724(a) lets a town withdraw if it "voted to form" the unified union school district. Stowe never "voted to form" Lamoille South; the Board imposed the merger in 2018 over local objection. So the literal text does not apply.
- Athens School District (2020 VT 52) supports reading Acts 46 and 49 to control over older provisions of Title 16. The Vermont Supreme Court rejected arguments that pre-Act 46 voting provisions could be used to "veto" involuntary mergers.
- The Board's "Default Articles of Agreement" reference § 724, but the AG concludes that articles cannot expand statutory authority the legislature did not grant.
The opinion notes the question is under active legislative debate. Several pending bills (H. 180, H. 493, DR 22-0275) would amend § 724 to remove the "voted to form" language. The AG's view is that pending legislation cannot be used to interpret existing statutes (Vt. Sup. Ct. has said so in Insurance Co. of State of Pa. v. Johnson, 2009).
What this means for you
If you are a Vermont state legislator working on school district legislation
The opinion is essentially a request for legislative clarity. Section 724 was written before Act 46 and does not contemplate involuntary mergers. The pending bills, particularly H. 180 and H. 493, would close the gap by allowing towns in involuntarily-merged unified union districts to use the same withdrawal process. Until the legislature acts, the State Board of Education does not have jurisdiction over these withdrawals, and the towns are stuck.
If you are a member of a town in an involuntarily-merged unified union district
You cannot rely on § 724 to leave under current law. Your options are:
- Wait for legislative action (multiple bills pending).
- Pursue litigation if the Board denies your withdrawal request, with the understanding that courts have generally followed Athens and read Act 46 broadly.
- Work within the unified district structure and seek improvements rather than dissolution.
If you are a school board member or attorney for a unified union district
The default Articles of Agreement reference § 724, but the AG's analysis is that this reference does not give the Board (or the towns) authority that the statute does not. If you face a withdrawal request, document your legal position carefully and expect the issue to require legislative or judicial resolution.
If you are a State Board of Education member
You may not have jurisdiction over withdrawal requests from involuntarily-merged districts. If a request comes to you, decline to act under § 724(c) and refer the petitioners to the legislature. The opinion gives you the legal cover to do so.
Common questions
Q: What is Act 46?
A: A 2015 Vermont statute that consolidated school districts. It allowed voluntary mergers and authorized the State Board of Education to order involuntary mergers if the Board found necessary.
Q: What is the difference between a "voluntarily formed" and "involuntarily formed" unified union district?
A: A voluntary merger happens when towns vote to combine. An involuntary merger is one ordered by the State Board of Education under Act 46 because the towns failed to merge voluntarily.
Q: Why is § 724 limited to towns that "voted to form"?
A: Section 724 was enacted in 2008, before Act 46. The legislature in 2008 contemplated voluntary mergers and wrote a withdrawal procedure for them. It did not anticipate involuntary mergers, which Act 46 introduced.
Q: Has any involuntarily-merged district been allowed to withdraw?
A: Under § 721a (the parallel withdrawal statute for union elementary school districts), Westminster was permitted to withdraw from the Windham Northeast Union Elementary School District. Section 721a does not have the "voted to form" language. So union elementary districts can dissolve, but unified union (K-12) districts cannot under current law.
Q: Can the State Board of Education adopt rules to fix this?
A: The AG concludes that the Board's authority is limited to what the legislature has expressly conferred. The Board has not been authorized to promulgate withdrawal rules for involuntarily-merged districts. Even default Articles of Agreement cannot expand the Board's statutory jurisdiction.
Background and statutory framework
Act 46 (2015) and Act 49 (2017) consolidated Vermont school districts into "preferred governance structures." Most provisions of Acts 46 and 49 were not codified into Title 16. Chapter 11 of Title 16 (which contains formation and withdrawal statutes) has not been substantively updated since the Acts.
Section 724 (enacted 2008) reads in relevant part:
A town or city corresponding to a preexisting school district that voted to form a unified union school district may vote to withdraw from the district if one year has elapsed since the unified union school district became a body politic and corporate as provided under section 706g of this title.
Subsections (b) and (c) describe the withdrawal voting process and the State Board of Education's role.
The Vermont Supreme Court's 2020 decision in Athens School District v. Vermont Board of Education established two principles relevant here:
- Acts 46 and 49 must be read to give effect to the legislature's intent to create preferred governance structures through involuntary mergers.
- Provisions of Acts 46 and 49 control over preexisting Title 16 voting provisions in the context of involuntary mergers.
Applied to § 724, this analysis suggests that the section's pre-Act 46 voting provisions cannot be used to undo involuntary mergers without express legislative authorization.
The AG also notes that the Board is "limited to powers conferred by the Legislature" (In re Mountain Top Inn & Resort, 2020), and that "authority cannot arise through implication" (In re Acorn Energy Solar 2, 2021). Without express statutory authority over withdrawal from involuntarily-merged districts, the Board likely does not have jurisdiction under § 724(c).
The opinion ends with a note that "[h]ow Acts 46 and 49 are intended to interact with statutory law would benefit from legislative clarity." Multiple bills pending in 2022 would do exactly that.
Citations and references
Statutes and Acts:
- 16 V.S.A. §§ 164, 706g, 721, 721a, 724
- Acts 46 (2015), 49 (2017), 66 (2021), 173 (2018)
- 3 V.S.A. § 159
Cases:
- Athens School District v. Vermont Board of Education, 2020 VT 52
- In re Mountain Top Inn & Resort, 2020 VT 57
- In re Agency of Admin., 141 Vt. 68 (1982)
- In re Acorn Energy Solar 2, LLC, 2021 VT 3
- Insurance Co. of State of Pa. v. Johnson, 2009 VT 92
Source
- Landing page: https://ago.vermont.gov/about-attorney-generals-office/attorney-general-opinions
- Original PDF: https://ago.vermont.gov/sites/ago/files/2025-11/IO%202-24-22.pdf
Original opinion text
THOMAS J. DONOVAN, JR.
ATTORNEY GENERAL
JOSHUA R. DIAMOND
DEPUTY ATTORNEY GENERAL
SARAH E.B. LONDON
CHIEF ASST. ATTORNEY GENERAL
STATE OF VERMONT
OFFICE OF THE ATTORNEY GENERAL
109 STATE STREET
MONTPELIER, VT 05609-1001
February 24, 2022
Via email: [email protected]
Oliver Olsen
Chair, State Board of Education
Dear Board Chair Olsen,
I write regarding your request for an Attorney General Opinion related to the Town of Stowe's vote to withdraw from the Lamoille South Unified Union School District ("the Unified District"). The Unified District was involuntarily formed pursuant to Act 46 (2015) by order of the State Board of Education. You have asked whether the proposed withdrawal is permissible under Vermont law, and if so, whether the Board's jurisdiction and role specified in 16 V.S.A. § 724(c) applies.
[For the full text of the opinion, including the comprehensive review of statutes, case law, and pending legislation, see the original PDF linked above.]
The opinion concludes that, while declining to issue a formal opinion due to the likelihood of litigation, "based on the information available to date, a court is likely to find that the Board does not have authority to apply the withdrawal process set forth in 16 V.S.A. § 724(c) to a unified union school district formed involuntarily pursuant to Acts 46 and 49."
The opinion's reasoning rests on:
- The plain language of § 724, which limits its scope to towns that "voted to form a unified union school district."
- The Vermont Supreme Court's analysis in Athens School District v. Vermont Board of Education, 2020 VT 52, which read Acts 46 and 49 broadly to control over preexisting Title 16 voting provisions.
- The principle that the Board's authority is limited to what the legislature has expressly conferred (citing In re Mountain Top Inn & Resort, 2020 VT 57; In re Agency of Admin., 141 Vt. 68; In re Acorn Energy Solar 2, 2021 VT 3).
- The principle that pending legislation cannot be used to interpret existing law (Insurance Co. of State of Pa. v. Johnson, 2009 VT 92).
The opinion also notes that the question is under active legislative debate, with pending bills H. 180, H. 493, and DR 22-0275 all proposing to remove the "voted to form" language from § 724.
Sincerely,
Sarah E.B. London
Chief Assistant Attorney General