Three town fracas: Negotiations to revise Berkshire Hills allocation formula turn clamorous

Stockbridge — The committee charged with revisiting and possibly changing a 50-year old-agreement that governs how each of the three towns is assessed within the Berkshire Hills Regional School District melted down Tuesday night (March 12) when a representative from Stockbridge dug his heels in.

As usual, it all boiled down to money.

It was only the fourth meeting of the Regional Agreement Amendment Committee (RAAC), composed of representatives from Great Barrington, Stockbridge and West Stockbridge. The previous meeting saw a proposal  from Great Barrington representative Chip Elitzer (see a copy of his plan below), who had suggested an allocation method that would charge each town by its total assessed value of property rather than the current per pupil allocation. The current formula, devised in 1980, has Great Barrington residents and some officials up in arms over having to bear 70 percent of the costs allocated to the three towns, costs which have soared in recent years. This year Great Barrington is looking at paying an additional $900,000 to support the district, at an increase of almost 7 percent.

Stockbridge pays 15 percent, and West Stockbridge, 14.6 percent, in the current per student calculation for the total $25 million school budget. Great Barrington pays just over 50 percent of the total district budget.

And it is these rising yearly school costs’ hit to the pocketbook that gave birth to RAAC in the first place, after Great Barrington voted down two Monument Mountain Regional High school renovation proposals over what is perceived as an unfair payment method that subsidizes the other towns. The 50-year-old high school building is in desperate need of massive upgrades, if not a full renovation, and RAAC is just one way the school district is trying relieve Great Barrington, which struggles with property taxes that are high compared to local incomes, and has an aging population on fixed incomes trying to stay in their homes.

All of this, along with decreases in state money for schools over the years, has taken its toll.

Chip Elitzer, at the table during the RAAC discussions. Behind him is Steve Bannon, chair of the BHRSD School Committee. Photo: Heather Bellow

Elitzer’s measure was voted down at the third meeting. Elitzer, who held his tongue throughout this meeting, later told The Edge his idea was “dead on arrival.” Elitzer’s proposal hinged on the idea that the district has run out of places to cut costs without harm to education, and the only way forward is to look for revenue. Since what the state gives is deficient and can’t be manipulated, all that’s left is a local option of moving towards a “unified tax rate,” that will gradually bring all three towns into paying roughly the same over a period of 10 to 20 years. Elitzer says this will put the district on the road to a more sustainable, “well-financed future.”

Committee Chair Mark Sprague of Stockbridge put together a proposal to change the way borrowed money is divided by the three towns, “just to have something to talk about,” and with an eye towards renovating the high school. He further asked the committee to explain why Great Barrington doesn’t think the current allocation is fair when it has 70 percent of the population and students and bears 70 percent of costs.

School Committee member Richard Dohoney explained that Great Barrington pays just over 50 percent of the total school costs, but 70 percent of what the three towns pay.

“This is a major sticking point,” Sprague said.

BHSRD School Committee member Rich Dahoney. Photo: Heather Bellow

Great Barrington Finance Committee Chair and RAAC member Michael Wise said he would like to address the “governance” issue, which he thinks is critically intertwined with the money issue, and said he sent some ideas to the committee. “The core of one of our problems is not acting like integrated school districts but rather like a loose alliance of competing towns.”

Wise suggested, for instance, a method to allocate school costs by a blend of shared property value and shared populations ­­–– a total population of the towns, not just student counts. In a memo to the committee he outlined five ways the towns could reshape both governance and funding to make it behave like a more singular organism. The proposal is reproduced below.

But before any ideas could be further discussed, Stockbridge member Judge Frederick Rutberg lobbed a bomb on the table: a motion to keep the allocation method exactly the same. Not only that, but he also suggested giving towns the option to leave the district if they didn’t want to pay more for the schools. “If you change what it’s going to cost people,” he said, “you have to give people the option to say, guess what, we don’t want to pay.”

This got everyone’s dander up.

Stockbridge RAAC delegate Fred Rutberg. Photo: Heather Bellow

“Do we want to change things here?” said Great Barrington Selectboard member Dan Bailly, who looked like he might lunge at Rutberg.

“We want to change things,” Dohoney said.

“If the solutions offered are not acceptable to the other towns,” Rutberg said, “you’re stuck with the one we’ve got.”

Dohoney asked Rutberg to withdraw his motion to keep the status quo, and he observed that to shut down the process now with that motion would “do a tremendous disservice to the process.”

“We may as well just pack up and go home,” Bailly said. “It’s just…semantics.”

“The reality is all this is an opportunity to request and shift tax burden from Great Barrington to the other two towns…and if that’s what’s its about, and if facts are what they are….it’s never gonna fly…think about a plan designed to do something other than relieve Great Barrington of its tax burden,” Rutberg said.

“If we fail to reach a recommendation, it doesn’t bode any town well,” Sprague said, “and we’ll all have a fixed cost for the [high] school.”

Rutberg dug in some more. “I don’t see how we can change the rules,” he said. “It would be cheaper for Stockbridge to get out [of the district].”

School Committee Chair and Great Barrington Selectboard member Steve Bannon, who is not on RAAC, entered the fray.

“I think we’re all smarter than this discussion tonight,” he said. “The school committee has never taken a vote based on where [members] live,” he said. “Your group is [now] taking a vote and taking stands based on where you live. We’ve got the wisest people we could find [for RAAC] to come up with solution to help the children of our district, not to vote by where you live but what’s best for the district.”

Bannon further said “the district knows it needs help, it knows the funding method can’t continue” and “out-of-the-box thinking” is required here. “We’re asking you to dig deep.”

It kept boiling down to money. “The way to help the schools is to make Great Barrington pay less or think they’re paying less,” said member Alan Thiel of West Stockbridge. “That’s laying flowers on a dung heap.”

And this is where things headed south, people got louder.

“Stockbridge and West Stockbridge went to polls and overwhelmingly voted to fix that piece of crap [high] school,” Dohoney said. “The only reason the high school is not fixed is because of the Great Barrington problem.”

Dan Bailly (center) responds to Fred Rutberg’s contention that unless the all three towns agree on an acceptable assessment plan the district will be stuck with the one it’s got. Photo: Heather Bellow

“If the school budget passes in Great Barrington it will add 70 cents to the tax rate,” Bailly said, aiming at Thiel and Rutberg, and noting that the town is a regional hub for South County that has to keep up with infrastructure, too. “We have bridges to deal with that you people drive over,” he added.

Thiel spelled it out again. “You want to get Great Barrington’s taxes lowered.”

“Most people will agree that the [high] school needs to be fixed,” Bailly said. “It’s not gonna happen if this unsustainability continues. I’m not saying lay it all on Stockbridge and West Stockbridge. But we need to fix something. That high school is gonna fall apart.”

Wise went back to the governance problem. “If Great Barrington votes no, and the other [two] towns vote yes, we have to go back in and fix our budget.” He said this is why it passes every year despite widespread frustration with rising costs and the allocation method.

And Thiel said he had once heard someone say that “if you had secret ballots for the school budget it would fail every year [at town meeting].”

Superintendent Peter Dillon noted that fewer than 15 percent of voters even go to town meeting.

Jay Bikofsky of Stockbridge suggested going beyond the committee to find some experts who had a model that might help, and Dillon said he knew of some and would look into it.

“It’s a zero sum game,” Rutberg said, “when you talk about changing allocation. What helps one doesn’t help the other. Great Barrington is looking for help, and this ship isn’t going anywhere…anything to give enough relief or satisfaction [to Great Barrington] is going to do too much hurt to the rest of the community.”

Sprague wondered what allocation would be considered fair to Great Barrington residents. Bannon suggested perhaps a 5 percent increase to the other two towns.

Rutberg’s motion was tabled. Dillon said he would return next time with population numbers and would look at how shifting the capital formula on a high school renovation might work. He said he would also look at the financial impact of students who choice out of the district, since the state money leaves with them.

And Wise disagreed with Rutberg that changing the allocation was a zero sum game. “If we don’t reach a healthy agreement it’s not good for anyone,” Wise said. “It’s the health of the system, not just how we organize the money.”

And Rutberg disagreed back. “The system needs more cash but whether from Great Barrington or West Stockbridge or Stockbridge is the question.”

*     *     *

Michael Wise letter to Regional Agreement Amendment Committee:

To: BHRSD Regional Agreement Amendment Committee

From: Michael Wise

Date: April 10, 2016

Here are some ideas to move toward the goal I have expressed of treating Berkshire Hills as a integral district rather than an arena for contention among competing towns. They deal with governance as well as budgeting and financing. To the extent possible, these ideas use methods that are either already in Massachusetts’ laws and regulations or that would be plausible extensions of them.

Creating a district that is actually autonomous from the member towns is of course not possible. In Massachusetts law and tradition the principal unit of government below the state level is the town, and the provisions in law for regional school districts tie districts to towns. Towns have an obligation to provide for a public school system, sufficient for “all children entitled to attend the public schools”. I assume that to do so a town should support the schools financially, whether in the town’s own system or in a district to which the town belongs, according to its resources and scale. Richer towns and larger towns should expect to contribute more.

Organization and governance of regional districts should respect the constitutional principle of “one person-one vote”. That has important implications about the selection and structure of the school committee and about the processes for preparing, adopting and allocating the district’s budget.

School committee

District-wide open election is the obvious way to choose a committee for an integral district. This is one of the five options for organizing a regional district school committee that are permitted by statute. All voters in the district would vote for candidates who would not be subject to any residency requirement. Members would answer to the entire district, not their particular towns. An elected district-wide committee could be smaller than the current unwieldy committee. The size of the current committee is probably explained by a desire to approximate proportionate representation. But a committee of ten members is too large for effective deliberation. Five or seven members would be more workable.

Weighting votes according to population represented is the best of the other statutory options for complying with the one person-one vote principle. It is particularly well suited for a lopsided district like ours. The other K-12 district in which one town is much larger than all the others combined, which is Southwick-Tolland-Granville, uses weighted voting. Applying population-weighted voting to Berkshire Hills, the votes from school committee members from Great Barrington would account for 68 percent, those from Stockbridge for 19 percent, and those from West Stockbridge for 13 percent. This method could permit reducing the size of the committee while respecting the one person one-vote principle. Since the election would not be district-wide, members could be elected at town elections in the spring when voters are occupied with local issues, rather than out of sequence in November.

Representation in proportion to population would also comply with the one person-one vote principle. Exact proportionality would not be possible in a small committee. Rounding to the nearest ten percent, in the current ten-member committee Great Barrington would have seven members, Stockbridge two and West Stockbridge one. To give West Stockbridge two members the committee might be expanded to eleven. The resulting shares, of 64 percent, 18 percent and 18 percent, would underweight Great Barrington and Stockbridge slightly while overweighting West Stockbridge. Here too, the members could be elected at the spring town elections.

District wide election with residency requirements for candidates is our current system. The residency allocations depart substantially from the one person-one vote principle. If this method is retained, the allocations must be corrected so the assignments of residency are proportionate to the towns’ populations: seven to Great Barrington and one or two each to Stockbridge and West Stockbridge.

Appointment by locally elected officials is the statutory method for creating a district school committee that is least consistent with treating the district as an integral entity. On the other hand, it could create a body that is better suited to making priority-setting decisions. Membership would have to be proportionate to population, or voting power would have to weighted.

Budget preparation

Town government involvement would promote consideration of context and tradeoffs with other priorities early in the budget process, rather than leaving that task for the end. Balancing educational demands with other government responsibilities is a major governance challenge for regional districts. In a town with its own school system, the citizens voting on the total school budget at a town meeting can at least contribute to a decision about the relative priority of school spending compared to other needs. In a regional school district, though, that final decision is at best indirect, and it could be frustrated by other towns’ actions. To encourage earlier consideration of this balance and to facilitate final approval of the district’s budget proposals, a representative from each of the town’s governments should be a voting member of the school committee’s budget or finance subcommittee, or such representatives should be designated to participate in the school committee’s consideration and vote on the district’s budget. These could be members of the boards of selectmen or the finance committees, or town managers or administrators. This supplementation of the school committee for a particular function resembles what is already provided in the context of collective bargaining. For that purpose, state law calls for a representative from the member towns’ managements to be added to the school committee, with a vote.

Community decision-making

District-wide vote is how a budget would be adopted in an integrated district. There is a model in the statute for convening a district-wide “town meeting” for this purpose. For two-member districts that cannot agree on a budget, a special district-wide meeting of all the voters in both municipalities can be called, by the school committee, to adopt a budget. This statutory language could be incorporated into a district agreement, to provide for adopting the district budget at a formal “town” meeting open to all the voters in the district. This could be the regular method for adopting the budget, or it could be the fall-back method to use when the proposed budget is rejected by towns that account for a majority of the district’s population.

Other ways to organize a district-wide vote on the budget could be imagined. Teller votes might be taken at town meetings and aggregated together, and a majority of all the votes at all the town meetings would be needed to adopt the budget. But because the town meetings are not held at the same time, different voters would be operating on different information, and pressure on the later town meetings could distort the process. The budget could be put to a referendum at the town elections, with all the votes from the member towns aggregated together. To keep the ballots secret during the whole process, the votes might not be compiled until all towns had voted. Timing differences could be overcome by holding a referendum on the district budget on the same date across the district. The cost to organize such a special election might be greater than the cost of holding a district-wide town meeting, but the level of participation in a referendum might also be higher.

The current rule for adopting a district budget, when applied to lopsided districts like ours, departs so far from the one-person one-vote principle that it might be unconstitutional. In general, a regional district’s budget must be approved by two-thirds of the “local appropriating authorities” of the member jurisdictions. But where two-thirds of the number of towns represents a small fraction of the total district population, the result could be absurd. To ensure that a new method is enforceable, legislation might be needed. The legislature might want to create a general rule that could be used by other lopsided districts to avoid forcing a budget that most of the district would reject.

Funding support

Uniformity would be the norm for an integral district. The effect of the method for raising funds should be the same everywhere in the district. This could be done by applying a uniform tax rule to all the district’s population or a uniform tax rate to all of the district’s property. In this state, it would not be possible for the district to levy a direct tax, nor for the towns to do so on the district’s behalf, and adding a factor onto the state income tax for residents of the district also looks unlikely. The property tax is the only serious possibility.

A single property tax rate across the district would be the best uniform method to raise funds like an integral district would. It is familiar, simple and fair. By combining the factor of overall size with the factor of ability to pay, it is comprehensive. It is manageable and up-to-date, since the towns are required to keep their assessment current. It is equitable, since state oversight ensures that equalized values are consistent across jurisdictions. The funds needed to meet the district’s budget, net of state payments and other revenues, would be divided by the total value of the taxable property in the district to yield a tax rate that would be applied across the district. In a truly separate district, this would be collected separately; however, because regional school districts in Massachusetts do not have direct taxing authority, it would be collected by the towns as an addition to the tax rate that each town sets to pay for its non-school operations.

This committee has rejected a proposal for a uniform tax rate approach, so I will examine the second-best alternatives for allocating financial responsibilities among the member towns.

Population is a simple, fair method of allocation, which has the effect of treating everyone in the district equally. Shares would be stable, changing only with the decennial federal census. Or, to avoid large adjustments at the ten-year interval, shares could be updated periodically with the Census Bureau’s interim estimates. Total population would be the best, most straightforward measure of the relative sizes of the member towns.

School-age children as a basis for allocation would correspond to the towns’ statutory obligation to provide schools for all of their children who are eligible to attend public school. Unlike the student figures used in the budgeting process now, this figure would include children who are home-schooled and in private schools. Unfortunately, census data categories are too broad to measure this accurately. In addition, at this level of detail the interim estimates in the American Community Survey are unstable.

Enrolled children is our basis for allocation now. This method is familiar. It amounts in effect to the town paying tuition per student, rather than supporting a school system. The figure does not include choice-out and tuition-out students, whose status can affect the district’s finances.

Foundation enrollment adds choice-out and charter-out students and other tuition-out children, and thus includes factors that affect the budget but are not included in the figures used now. But foundation enrollment still leaves out school-age children who are home-schooled or go to private schools. Using foundation enrollment – or for that matter actual enrollment – means that the more a town’s children go to private school or stay at home, the less the town would pay to support the public school district. That perverse effect is inconsistent with the towns’ obligation to support an adequate public school system for all of its eligible children.

Income could be used, to allocate costs in proportion to the population’s capacity to pay. Data on per capita income and population could be combined into a measure of total personal income. This is an element of the state’s formula for setting a town’s minimum local contribution. Personal income would not, however, include commercial or industrial contributions to a town’s financial capacity. No doubt that is why the other element of the minimum local contribution formula is assessed value.

Equal shares for each of the three towns would be unfair for most purposes, because the towns are so different in size and resources. But sharing equally could make sense for functions for which each town bears equal responsibility or receives equivalent value.

Combining methods could create an acceptable compromise approach. A simple, principled combination, which comes closest to the goal of an integral district and which is used in some other regional agreements, would give half of the allocation weight to share of population and half to share of assessed value.

Different kinds of costs could be allocated by different methods. Now we use the same method for allocating all of the costs that that are not covered by other revenue sources such as tuition, choice, Ch. 70 and MSBA.

Capital costs might be treated differently from short-term variable costs. This would not be because capital costs are especially high; long-term debt service net of MSBA support accounts for only about four percent of the towns’ assessments. Rather, it would be because capital costs represent the commitment to provide for a school system into the uncertain long term future when economic and demographic conditions could differ significantly from now. Allocation of capital costs should share the risks and downplay short-term differences. Each town might contribute equally.

Central management costs might also be shared equally. These costs, which total about $1.7 million in the FY2017 budget, do not depend much on the scale of the district’s operation. If more towns join the district, this element of each town’s assessment will drop.

Revenue shortfall from choice and tuition students might also be treated as a cost to allocate differently. Richard Bradway has suggested that the difference between the district’s total (net) costs and the direct costs of the towns’ own students be shared equally. He reasons that because the additional students enable the district to offer better programs, and having a better school district benefits each town equally, the towns should share the cost equally. Each town’s assessment would be a combination of this share of the revenue shortfall plus the costs due to its own students (that is, enrollment times the district-wide average total cost per student). His proposed combination of methods thus allocates some costs equally and others by enrollment.

Whatever the allocation formula, the so-called “alternative” method for computing the allocation corresponds better, in concept, to treating the district as an integral unit. Under this method, the member towns can agree about how to allocate all of the school district expenses (net of state aid and other revenues), as long as the total they pay to the district exceeds the total of the towns’ minimum local contributions. The “statutory” method that we use now permits towns to agree only about allocating what exceeds each town’s minimum local contribution. The two methods reach similar results if the way the towns’ agreement allocates costs resembles the formula the state uses to determine minimum local contributions.

Borrowing

District-wide vote would be how an integral district would authorize borrowing. This method can be used by regional districts now, as an alternative to the method that is implied by the current agreement. In the current agreement, the school committee must notify the member towns when it decides to authorize debt, to give each town an opportunity to call a special town meeting and object.

Summary

Five changes would move us closer to the goal of acting like an integral district:

• electing the school committee district-wide without residency requirements,
• including town officials in the committee’s budget decisions,
• adopting the budget by district-wide direct vote,
• allocating financial obligations uniformly, by property value or total population or by a combination of those measures, and computing the allocations with the “alternative” method, and
• authorizing debt by district-wide direct voting.

I would appreciate your reactions to these ideas and your suggestions about the variations and other ways to combine them. In principle, the less we rely on district-wide methods, the more important it becomes to correct how the current agreement fails to assign decision-making power equitably among the people in the different towns in the district.

*     *     *

Chip Elitzer letter to Regional Agreement Amendment Committee:

Dear Tri-Chairs:

I would like to elaborate on my proposal to transition to an Assessed Value Allocation (AVA) method for financing the BHRSD budget among the three towns. The principal reason why this committee should recommend it to the School Committee is not fairness or equity – although those attributes are in its favor – but rather to ensure the financial resources that will enable our schools to continue to provide a high-quality education to future generations.

With each successive year, constructing a District budget that will pass muster with our taxpayers while maintaining our high standards has edged closer to the breaking point. I believe that Peter and his team have done just about as much as they can to manage the expense side of the budget. Any further cuts will likely begin to have a negative impact on the richness and diversity of our programs.

That means that we need to think strategically about the revenue side of the budget. Broadly speaking, there are four categories of revenue: state aid, choice revenue, tuition revenue, and town contributions derived from taxes on property owners. For the first category, we are entirely at the mercy of the state; for the second category, we can hope for an increase in the choice reimbursement rate but – again – we are limited by the state; and for tuition, we negotiate as best we can, but we can’t reasonably project a substantial increase.

The good news is that the fourth category is entirely within our local control, and it is by far the largest revenue component of the BHRSD budget. The first strategic question we should ask is, “What is our education tax capacity?” As you have seen from my hand-out at last week’s meeting (attached here for your convenience), the answer for the current fiscal year is at least $9.87 per $1,000 of assessed valuation, because that is the number derived from the approval of the District budget by Great Barrington voters at their last Annual Town Meeting. I believe that the citizens of all three towns value the education provided by their District with equal fervor. That doesn’t mean, of course, that they would have voted last May to increase the school budget by $6.3 million by bringing their tax rates up to GB’s level. But that $6.3 million is an eye-popping number and one which suggests that a well-financed future for our District is not a vain hope.

The most important work that we can do as a committee is to recommend an amended District agreement that puts us on a firm path to financial sustainability. The strategy to do that should begin with a commitment to move towards a unified tax rate, for two reasons: (1) to have some District taxpayers contribute at a lower rate than others is very inefficient from a revenue standpoint (“leaving money on the table”) and (2) it completes the work begun over 50 years ago with the formation of the BHRSD by unifying the citizens of the three towns into a District “tribe.”

The transition would have to be very gradual. I proposed 10 years last week, but political reality may require 20. I have attached spreadsheets showing both timelines. During the transition period, the taxpayers of GB and West Stockbridge would continue to pay higher rates than Stockbridge taxpayers to support the District, but the differential would narrow a bit each year. The spreadsheets are based on a replication of the $19.2 million total assessment of FY2016 for each of the subsequent years. Their purpose isn’t to project future budgets but rather to show the mechanism by which the transition is made. The transition begins in FY2018 (because it is already too late to change FY2017). In the 20-year version, for example, during FY2018-FY2036 the allocation formula would be calculated two ways: the way it’s done now, and using the AVA method. The year would determine the weighting to be used. For example, in FY2024, AVA would be 35% implemented, and the student headcount method would still account for 65% of the result. By 2037 and thereafter, AVA would be the only method used.

I have taken the liberty of attaching a first draft of proposed language to replace the current paragraph in the District Agreement that relates to Apportionment (see below).

Sincerely,

Chip Elitzer

Proposed revision of Berkshire Hills Regional Agreement

SECTION IV

APPORTIONMENT AND PAYMENT OF COSTS INCURRED BY THE DISTRICT

(A)       Apportionment of Costs

Existing:

All costs for the fiscal year beginning July 1, 1980 and for each fiscal year thereafter shall be apportioned to the member towns on the basis of their respective pupil enrollment in the District. Each member town’s proportionate share of such costs shall be determined by multiplying the amount of the budget adopted by the District pursuant to sub-section V(C) by the ratio that such member town’s pupil enrollment in the District on October 1 of the calendar year next preceding the fiscal year for which the apportionment is determined bears to the total pupil enrollment of all the member towns.

Proposed:

Each member town’s share of the operating costs shall be calculated in the following manner subject to all provisions of Massachusetts General Law (MGL) and the Code of Massachusetts Regulation (CMR):

For the Fiscal Year 2018 through the Fiscal Year 2036, the apportionment shall be calculated by the two methods described below, with 5% weight given to the second method in FY2018, and increasing in increments of 5% for each subsequent year until FY2037, when the second method shall be the sole determinant of the apportionment in that year and thereafter.

(1) PUPIL ENROLLMENT METHOD

Each member town’s proportionate share of costs shall be determined by multiplying the amount of the budget adopted by the District pursuant to sub-section V(C) by the ratio that such member town’s pupil enrollment in the District on October 1 of the calendar year next preceding the fiscal year for which the apportionment is determined bears to the total pupil enrollment of all the member towns. [Note: this is essentially the existing language, which will need to be rewritten to describe accurately the current method.]

(2) ASSESSED VALUE ALLOCATION METHOD

1. Determine the gross operating budget
2. Subtract school choice tuition income and regular tuition income
3. Add the gross capital budget
4. Subtract Chapter 71 transportation aid
5. Subtract Chapter 70 (as calculated from the Department of Elementary and Secondary Education)
6. Subtract other revenue sources to the school district
7. Calculate the local contribution by this formula: A-B+C-D-E-F= Local contribution
8. Each member town’s proportionate share of the local contribution shall be determined based on its assessed taxable property value in the regional school district on December 1 of the preceding year for which the apportionment will be assessed.
9. The combined operating and capital assessment will be determined by taking the local contribution (G) multiplied by the ratios as determined in (H)

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