October 31, 1985
Mr. John P. Billings
Deputy City Attorney
Post Office Box 435
Vermillion, South Dakota 57069-0435
OFFICIAL OPINION NO. 85-41
Joint participation in construction of National Guard armories
Dear Mr. Billings:
You have requested my official opinion on the following factual situation:
FACTS:
The City of Vermillion, through the City Council, has voted to apply for a Federal Grant for the construction of a new National Guard Armory. As part of the application process, the City will enter a construction and use agreement with the South Dakota National Guard, acting through its Military Board. As part of the planning process for the Armory, the City has proposed that the City, County and School District enter into an intergovernmental cooperative agreement for the joint use of the Armory. This would be accomplished through the terms of a construction and use agreement with the Military Board. Under the terms of this agreement, the City, County and School District would contribute a sum of money to cover the cost of the construction beyond the federal grant. It would be anticipated that separate governmental cooperative agreements would be executed in the future as each governmental entity expands its use of the facility. The intent at the present time is that the City of Vermillion would be the managing entity of the facility subject to the rights and privileges of the National Guard.
At the present time, the Vermillion School Board has expressed its intention not to participate in the construction or use of the Armory for its own purposes. As a result it will not be party to any contract at this time. There has, however, been some discussion of its possible use in the future for school activities. At the present time this discussion has centered around the use of the gym area for extracurricular activities. A dispute has arisen as to whether the school district under such circumstances can contribute to the use or construction of a National Guard Armory. A further dispute has arisen as to what amount may be contributed.
Based on the above facts, you have asked the following questions:
QUESTIONS:
1. Can the Vermillion School District donate sums of money for the construction of the National Guard Armory in Vermillion, South Dakota, when it does not presently intend to use the Armory for school district purposes?
2. Can the Vermillion School District donate sums of money for the construction of the Armory if it enters into a separate intergovernmental cooperative agreement with the City of Vermillion and this occurs after the initial construction of the Armory?
3. Should the Vermillion School District choose to enter into a intergovernmental cooperative agreement and make use of the Armory facility in the future, can it donate sums of money for the initial construction costs of the Armory or is it limited to paying only the costs of the use of the facility at the time it enters into the agreement?
In order to answer your question, it is necessary to review the history of the statutes relating to Armory construction. While this review is not exhaustive, it does point out the changes which have taken place over the past fifty years in this area.
Initially, a Military Board, appointed by the Governor, was empowered and directed to erect or provide, upon terms and conditions advantageous to the state, armories for the use of the National Guard. SDC 1939 41.0192. That board also was authorized and directed, upon donation of a site by a county or municipality, to erect for organizations the armory as specified in SDC 1939 41.0192. SDC 1939 41.0194. By 41.0196 the board was given the power to receive from counties, municipalities and other sources donations of land or contributions of money, buildings or other property to aid in providing or erecting armories throughout the state for the use of the National Guard which money, buildings or property should be held as other property for the use of the state. That section, 41.0196, likewise gave counties and municipalities the authority to make contributions for the purposes of chapter 41, which included a levy by cities of a property tax, but with the proviso that no money shall be donated or tax levied until the same was authorized by a vote of the majority of the electors in the city. The state was also limited to an amount of not less than five nor more than twenty thousand dollars exclusive of any gift or donation it could expend for armories. (41.0197) There was a further proviso that no armory might be erected in any city or place unless the city or place donated either real estate or other property of at least one-half the amount expended by the state. Thus, there existed basically a state system of armory construction with relatively minor contributions of land or small amounts of money to be made by cities or counties.
At a later time, apparently under the aegis of the federal government, it became the custom to enter into joint construction and use agreements whereby one or more agencies of government cooperated with the federal government in the construction, operation and maintenance of the building. To accomplish this the 1951 Legislature amended 41.0192 to permit construction of armories by more than the Military Board and provided in chapter 208, 'The state, municipalities, and school districts are authorized to participate jointly with the federal government in the construction of armories and other facilities for use of National Guard.' Thus, was created a different approach from that previously existing where contributions of property, buildings or money were made by political subdivisions to the state which in turn used the money and erected a building. This was discussed in an official opinion found at 1957-58 AGR 240 where the question was whether the City of Mitchell could issue general obligation bonds for the purpose of contributing with the state and federal government to the cost of the construction of a new armory. The Attorney General reviewed the sections above referred to and held that the bonds were for the purpose of cooperating with the federal government under Chapter 208, Laws of 1951, codified as SDC 1960 Supp. 41.0192(3) and held 'the purposes for which the bonds were issued was more for the purpose of participating or cooperating with the state and federal government in the construction of a National Guard Armory, than to make a mere contribution or donation . . .'
The law as presently on the books is found at SDCL 33-11-3, Cooperative Agreements with Other Public Agencies; 33-11-6 and 33-11-7, Donation of Facilities by Local Authorities, Donation by Local Authorities Authorized-Tax Levy Authorized--Vote of Electors.
In § 33-11-3, counties, municipal corporations and school districts or any department, agency or board of the state or combination thereof acting through their governing bodies may cooperate on such terms as may be agreed to by the Board of Military Affairs and the governing boards of the public corporations or other agencies in the construction, enlargement, conversion and equipment of armories and other facilities to be used by the National Guard and other agencies. This cooperative agreement is not required to be preceded by a vote of the electorate under § 33-11-7 and as this office held in 1953-54 AGR 217, there can be surplus nonbudgeted funds which may be transferred to the Board of Military Affairs for the joint construction of an Armory. The logic applies also to counties and municipalities which may have sufficient nonappropriated funds to meet their cooperative share of any such joint use project. The way was likewise cleared for state participation in joint utilization projects by 1959-60 AGR 207.
It can thus be seen that there is clear-cut difference between cooperative participation between agencies of government and the donation of money or property by counties or municipalities. As far as the cooperative agreements are concerned, as an example SDCL 1-24 permits political subdivisions to join in carrying out any power or purpose shared with any other agency. Thus, a county or municipality might choose to join together with the state for the construction of a county, municipal, community or memorial building, § 6-3-13, or become involved in an auditorium through the transfer of unobligated funds, § 9-21-26. School boards likewise are given the power to purchase real property and erect necessary buildings for the operations of such school, § 13- 8-39 and may likewise cooperate with a county, city or town in the construction, furnishing, operation, maintenance of a common building § 6-3-1 to 6-3-8.
IN RE QUESTION NO. 1:
A school district is not authorized in the same sense as are counties and municipalities to 'donate' land, money, buildings or other property for armory purposes.
IN RE QUESTION NO. 2:
As provided in the statutes discussed above, the school district can enter into a cooperative intergovernmental agreement with the city and county or it can enter into an intergovernmental agreement with the state of South Dakota for the use of the armory. In that sense then any money provided would not be a 'donation' but would rather be the participation fee as authorized by § 33-11-3 or 6-3-1.
IN RE QUESTION NO. 3:
If the school district enters into a cooperative agreement for future use of the armory, its fiscal participation in that agreement would be whatever was mutually agreed upon by the parties and could include a payment for construction costs commensurate with the future use by the school district in the building. This is consistent with the holding in Official Opinion 1951-52 AGR 432 where it was stated that the public school corporation may use funds as are not appropriated or earmarked for special purposes for participation with the National Guard for armory construction.
That opinion further states: 'The subject matter of the proposed project should be set forth in an agreement between the participating or cooperating agencies which should made a part of the official records of each such public corporation.'
Respectfully submitted,
Mark V. Meierhenry
Attorney General
