Amherst Charity Spending Illegal?
Content
F I N A N C E
D I R E C T O R
Town Hall
4 Boltwood Avenue
Amherst, MA 01002-2301
www.amherstma.gov
TO:
Select Board and John Musante, Town Manager
FROM:
Sandy Pooler, Finance Director
DATE:
July 23, 2015
RE:
Anti-Aid Amendment Issues
Phone: 413-259-3002
Facsimile: 413-259-2405
[email protected]
Short Answer
Town Counsel is still investigating the effect of the Anti-Aid Amendment, if any, on the Town of
Amherst’s social service spending and will report to the Town Manager and Select Board at a
later date.
Long Answer
Various persons have raised the question as to whether the Town’s spending on social services
violates Art. CIII of the Massachusetts Constitution, the so called Anti-Aid Amendment.
Article CIII provides in pertinent part:
Section 2. No grant, appropriation or use of public money or property or loan of credit shall be
made or authorized by the Commonwealth or any political subdivision thereof for the purpose of
founding, maintaining or aiding any infirmary, hospital, institution, primary or secondary school,
or charitable or religious undertaking which is not publicly owned and under the exclusive
control, order and supervision of public officers or public agents authorized by the
Commonwealth or federal authority or both, except that appropriations may be made for the
maintenance and support of the Soldiers' Home in Massachusetts and for free public libraries in
any city or town and to carry out legal obligations, if any, already entered into; and no such
grant, appropriation or use of public money or property or loan of public credit shall be made or
authorized for the purpose of founding, maintaining or aiding any church, religious denomination
or society. Nothing herein contained shall be construed to prevent the Commonwealth from
making grants-in-aid to private higher educational institutions or to students or parents or
guardians of students attending such institutions.
Guidance from the Department of Revenue states that, “[the Anti-Aid Amendment] is a
prohibition against the giving of money or property by a city or town to or in aid of any
individual, association or corporation embarking upon any private enterprise.” The guidance
also states, “Since public money can only be expended for public purposes, cities and towns have
not power to appropriate money for gifts or gratuities to persons whose situations may appeal to
public sympathy.” 1
For a few years, the Town provided emergency aid to individuals through the CDBG program,
which is a federal program and therefore not subject to the limitations of the Massachusetts
Constitution. When the Town lost its mini-entitlement status, we started funding social services
in the Town budget and when the Town regained mini-entitlement CDBG status, because of
CDBG’s anti-supplanting rules, the Town could not once again use CDBG funds for emergency
funds and was required to spend Town funds on social services.
Does providing emergency rent or utilities funds violate the Anti-Aid Amendment?
Is emergency aid a valid public purpose? N.B. there is a long history of municipal spending on
relief for the poor and other welfare spending.
Does it matter if the Town manages the program or whether it contracts with a private entity?
If providing emergency funds violates the Anti-Aid Amendment, does providing Veterans’
benefits? What about subsidies to children in LSSE programs? What about subsidies to children
in the Afterschool programs that are run by private providers?
These are confounding and difficult questions. The Anti-Aid Amendment is principally about
aid to private or sectarian schools, but its reach goes beyond education. Town Counsel has been
researching the case law related to the amendment. I re-read the 1917 Massachusetts
Constitutional Convention debates on the Anti-Aid Amendment. (While working for the
Legislature, I researched the history of the Amendment when proposals were made to repeal it.).
Town Counsel and I recently spoke about the issue and plan to speak again soon so he can
update me on his findings. I will report to the Town Manger and the Select Board once we have
a better understanding of the answers to these questions.
1
City and Town, February 2006 http://www.mass.gov/dor/docs/dls/publ/ct/2006/february.pdf
D I R E C T O R
Town Hall
4 Boltwood Avenue
Amherst, MA 01002-2301
www.amherstma.gov
TO:
Select Board and John Musante, Town Manager
FROM:
Sandy Pooler, Finance Director
DATE:
July 23, 2015
RE:
Anti-Aid Amendment Issues
Phone: 413-259-3002
Facsimile: 413-259-2405
[email protected]
Short Answer
Town Counsel is still investigating the effect of the Anti-Aid Amendment, if any, on the Town of
Amherst’s social service spending and will report to the Town Manager and Select Board at a
later date.
Long Answer
Various persons have raised the question as to whether the Town’s spending on social services
violates Art. CIII of the Massachusetts Constitution, the so called Anti-Aid Amendment.
Article CIII provides in pertinent part:
Section 2. No grant, appropriation or use of public money or property or loan of credit shall be
made or authorized by the Commonwealth or any political subdivision thereof for the purpose of
founding, maintaining or aiding any infirmary, hospital, institution, primary or secondary school,
or charitable or religious undertaking which is not publicly owned and under the exclusive
control, order and supervision of public officers or public agents authorized by the
Commonwealth or federal authority or both, except that appropriations may be made for the
maintenance and support of the Soldiers' Home in Massachusetts and for free public libraries in
any city or town and to carry out legal obligations, if any, already entered into; and no such
grant, appropriation or use of public money or property or loan of public credit shall be made or
authorized for the purpose of founding, maintaining or aiding any church, religious denomination
or society. Nothing herein contained shall be construed to prevent the Commonwealth from
making grants-in-aid to private higher educational institutions or to students or parents or
guardians of students attending such institutions.
Guidance from the Department of Revenue states that, “[the Anti-Aid Amendment] is a
prohibition against the giving of money or property by a city or town to or in aid of any
individual, association or corporation embarking upon any private enterprise.” The guidance
also states, “Since public money can only be expended for public purposes, cities and towns have
not power to appropriate money for gifts or gratuities to persons whose situations may appeal to
public sympathy.” 1
For a few years, the Town provided emergency aid to individuals through the CDBG program,
which is a federal program and therefore not subject to the limitations of the Massachusetts
Constitution. When the Town lost its mini-entitlement status, we started funding social services
in the Town budget and when the Town regained mini-entitlement CDBG status, because of
CDBG’s anti-supplanting rules, the Town could not once again use CDBG funds for emergency
funds and was required to spend Town funds on social services.
Does providing emergency rent or utilities funds violate the Anti-Aid Amendment?
Is emergency aid a valid public purpose? N.B. there is a long history of municipal spending on
relief for the poor and other welfare spending.
Does it matter if the Town manages the program or whether it contracts with a private entity?
If providing emergency funds violates the Anti-Aid Amendment, does providing Veterans’
benefits? What about subsidies to children in LSSE programs? What about subsidies to children
in the Afterschool programs that are run by private providers?
These are confounding and difficult questions. The Anti-Aid Amendment is principally about
aid to private or sectarian schools, but its reach goes beyond education. Town Counsel has been
researching the case law related to the amendment. I re-read the 1917 Massachusetts
Constitutional Convention debates on the Anti-Aid Amendment. (While working for the
Legislature, I researched the history of the Amendment when proposals were made to repeal it.).
Town Counsel and I recently spoke about the issue and plan to speak again soon so he can
update me on his findings. I will report to the Town Manger and the Select Board once we have
a better understanding of the answers to these questions.
1
City and Town, February 2006 http://www.mass.gov/dor/docs/dls/publ/ct/2006/february.pdf
