June 8, 1978

Mr. William A. Delaney III 
Butte County State's Attorney 
Butte County Courthouse 
Belle Fourche, South Dakota 57717

Official Opinion No. 78-27

Authority of county to transfer revenue sharing funds to the school district

Dear Mr. Delaney:

You have requested an official opinion from this office based on the following factual situation:

FACTS: 

In August, 1977, the Board of County Commissioners of Butte County, South Dakota, Adopted proposed budget governing use of 1978 Federal Revenue Sharing Funds, which budget included tentative allowance of $24,000.00 to Belle Fourche School District No. 9-1, Butte County, South Dakota, as financial assistance in payment of costs of special education.  The special education fund of the school district is insufficient to satisfy special education requirements in spite of imposition of maximum mill levy under SDCL 13-37- 16.  The revenue sharing funds are governed by Title I of the State and Local Fiscal Assistance Act of 1972 as amended by the State and Local Fiscal Assistance Amendments of 1976.  Local governments now may use shared revenue for any purpose for which local source revenues may be used under applicable state or local law.  The special education program of the school district includes services pursuant to SDCL 13-37 as implemented by Article 24:05 Special Education as adopted by Department of Education and Cultural Affairs, Division of Elementary and Secondary Education, State of South Dakota; such services include auxiliary services for students who are visually handicapped, hard of hearing, impaired speech, epileptics and who suffer from behavioral problems, many of which services are rendered in the home of the student as well as on the school premises.  In a real sense, the special education funds will jeopardize continuation of the special education program of the school district.  The school district does not have any surplus in the general fund that can be transferred to the special education fund under SDCL 13-16-26.

Based upon the above facts you ask the following questions:

QUESTIONS: 

1.  Is the Board of County Commissioners authorized to transfer the $24,000.00 of Federal Revenue Sharing Funds to the school district? 
    
2.  Is the school board of the school district authorized to agree with the county to use such funds for special education purposes?

IN RE QUESTION NO. 1:

As pointed out in your Statement of Facts, local governments may use revenue sharing funds for any purpose which local source revenues may be used, as authorized by the local government statutory powers.  To my knowledge there is no law which authorizes counties to transfer their funds over to the school district.  The answer to your question, therefore, is no.

IN RE QUESTION NO. 2:

In view of this answer, there is no need to answer your second question.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:DOC:jo