TO: Select Board and John Musante, Town Manager FROM: Sandy Pooler, Finance Director DATE: July 23, 2015 RE: Anti-Aid Amendment Issues Short Answer Town Counsel is still investigating the effect of the Anti-Aid Amendment, if any, on the Town of Amhersts 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 Towns 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

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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 CDBGs 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