STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

April 22, 1971

Dr. Don Barnhart, State Superintendent
Dept. of Public Instruction
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 71-13

School district reorganization in Union County

Dear Dr. Barnhart:

You have submitted the following factual situation:

On November 25, 1969, the State Commission on Elementary and Secondary Education, after having hearings, created a new school district in Union County consisting of the Elk Point Independent School District No.3; Jefferson Independent School District No.1; and North Sioux City Common School District No.4; and all or part of approximately nine other common school districts located in Union County.

On March 20, 1971, a permanent injunction was issued in the Circuit Court, Second Judicial Circuit, enjoining and restraining the action taken by the State Commission on Elementary and Secondary Education. An appeal has been taken to the Supreme Court and oral arguments were presented to the Supreme Court on or about March 29, 1971.

On February 26,1971, the electors of the North Sioux City Common School District No. 4 voted to dissolve their school district by a vote of 149 for and 26 against.

You have requested an official opinion based upon the following questions:

1. Do the school boards in the common school districts in the south half of Union County have the authority to offer contracts to the teachers for the 1971-72 school year?

a. If no, who has the authority and who is responsible?

b. If no, what is the personal liability of board members if the contracts are offered?

2. In the case of the dissolution of the North Sioux City School District on February 26,1971, who has the authority to offer contracts for the 1971-72 school year?

3. If funds are not available to pay high school tuition for youngsters residing in a common school district, where do the children go to high school?

Since the common school districts in Union County affected by the action of the State Commission on Elementary and Secondary Education taken on November 25, 1969 are enjoined and restrained as a result of court action now pending, it is my opinion that such school districts must be considered as operating school districts and should proceed to offer contracts as though they were going to operate as a common school district for the school year 1971-72. It is also my opinion that all contracts should be made subject to the litigation now pending and should the final results of the litigation result in the common school districts being dissolved, then such contract should be terminated. Since my answer to your first question is in the affirmative, it will not be necessary to answer your questions Number 1 a and 1 b.

With reference to your question Number 2, it is assumed that the election to dissolve the North Sioux City School District No.4 was under the provisions of SDCL 13-6-34, which reads as follows:

A school district which by sixty percent of the votes cast in a special election approves the dissolution of the school district and its combination with another school district or districts shall be combined with another district or other districts pursuant to section 13-6-35 and 13-6-36. Any school district may hold a special election to dissolve upon resolution of the district school board or upon the presentation to the clerk of the school board of a petition signed by a t least ten percent of the electors residing within the district calling for such election. The clerk of the school board, within sixty days after the receipt of said petition or the adoption of the said resolution, shall cause a notice of the special election to be published at least once each week for two consecutive weeks preceding the date of the special election in a legal newspaper most likely to give notice to the electors of the district concerned. Such notice shall clearly state and contain the purpose of the election and the time and place, or places, at which the election will be held.

SDCL 13-6-35 reads as follows:

Any school district which is or becomes one of the types of school districts described in sections 13-6-31 to 13-6-34, inclusive, shall be combined with another district or other districts by the county board of education. Such action shall meet the requirements and limitations for reorganization and the county board shall take into consideration the wishes of the electors of the district to be eliminated and the district with which it is to be combined as presented in a public hearing to be held by the county board of education for this purpose at least ten days prior to the date of such action provided, however, that such hearing shall not apply to actions required by the county board of education under the provisions of section 13-6-34.

SDCL 13-6-61 reads as follows:

All school district reorganization shall take effect and the new school district shall become operative on the first day of July following the date of the final approval action by the county board of education or the electors as provided by law, except that when such approval action shall occur after the first day of March the new school district shall not become operative until the first day of July of the next subsequent calendar year, provided, however, that any action taken by the state commission on elementary and secondary education before July 1, 1970, shall become effective on or before July 1, 1970, and any action taken subsequent to July 1, 1970, shall become effective on the date designated by said commission. The electors of any area to be included within a district as the result of any action taken under this chapter shall be privileged to participate in regular and special elections of said district which occur between the date of such approval action and such effective date.

Since the county board of education did not take any official action to attach the North Sioux City School District No.4 to another school district or districts prior to March 1, 1971, it is my opinion that the effective date of any such attachment would not be before July 1, 1972; therefore, such district should proceed as set forth in the answer to your question Number 1.

With reference to your question Number 3, Article VIII, Section 1 of the South Dakota Constitution reads as follows:

The stability of a republican form of government depending on the morality and intelligence of the people, it shall be the duty of the Legislature to establish and maintain a general and uniform system of public schools wherein tuition shall be without charge, and equally open to all; and to adopt all suitable means to secure to the people the advantages and opportunities of education.

The Legislature has not, by statute, provided a specific answer to your question Number 3. It is my opinion that if public funds are not available or authorized for the payment of high school tuition, then the payment of the tuition will have to come from a source other than public funds.

Respectfully submitted,

Gordon Mydland
Attorney General