STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
May 2, 1969
LeRoy Hill
State's Attorney, Butte County
Belle Fourche, South Dakota 57717
OFFICIAL OPINION NO. 69-44
Consolidation of school districts; electors' and governing bodies' rights
Dear Mr. Hill:
You have advised that by virtue of a "consolidation" proceedings, certain former common school districts have been added to the Belle Fourche Independent School District. The voters and the State Board of Education approved the consolidation before March 1, 1969, so that as of July 1, 1969, by statute, such former common school districts will be completely dissolved and such territory in such former districts will be within the Independent School District. At least two schools are, or were, operated by the common school districts involved. The annual election of the independent district will be held in June, 1969.
Based upon this short summary of these school districts you have submitted the following questions:
"1. Can the electors residing within such common school districts participate in the annual independent school district election held in June, 1969?
"2. Can the people of such rural areas propose candidates for the school board of such independent school district at the June, 1969 election?
"3. If the common school district board, prior to July 1, 1969, were to hire teachers for its schools for the 1969-70 school year, must the school board of the independent district honor such contract?
"4. After July 1, can the school board of such independent school district discontinue schools in the former common school districts without the approval of the electors of such former school district?
"5. Can the school board of the independent school district on its own initiative discontinue high school in such district under Chapter 38 Session Laws of 1967?
"6. If Question 5 is answered in the affirmative, what effect would such have upon such independent school district?"
All questions regarding educational matters must be approached with the basic knowledge that in education matters, because of the provisions of our enabling act, and also our Constitution, that initially the duty to provide our educational system rests exclusively upon the Legislature. (See Section 1, Article VIII of our Constitution.) Consistent with such constitutional mandate our Legislature may delegate to its designated agent the authority to act on behalf of the Legislature in this field.
It is the expressed intention of the Legislature that by July 1, 1970, all taxable territory of the state shall be incorporated within either an independent or a superimposed high school district.
The Legislature has seen fit to authorize its agents to accomplish the above announced purposes through what is called REORGANIZATION-which I interpret to mean the combination of various existing school districts, which results in a new school district, or through CONSOLIDATION-which I interpret to mean the enlargement of an existing school district by adding thereto other existing school districts which lose their identity and the territory of which becomes a part of a formerly existing school district. Loosely, the "reorganization" and "consolidation" in the field of education may be compared to the distinction between a "merger" or a "consolidation" in ordinary corporation law.
The problem herein involved is in the field of CONSOLIDATION. From the outset it must be made perfectly clear that the questions you have submitted and which I am answering in this opinion, have nothing to do with the problem of REORGANIZATION. It should also be appreciated that both consolidation and reorganization as means of the agents acting for the Legislature exist in the same designated chapter of the South Dakota Code of 1939-namely, SDC 1960 Supp. 15.20.
Section 3 of Chapter 39 of the Session Laws of 1968 amended SDC 1960 Supp. 15.2005. In such statute, SDC 1960 Supp. 15.2005(7) provides as follows:
(7) "The electors of any area to be included within a district as the result of any action taken under SDC 1960 Supp. Chapter 15.20, as amended, 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 dates."
This legislative delegation of authority applies to both Consolidation and Reorganization. Fortunately, any question that might be raised by the creation of "school board member representation areas" in the independent school district in question, which is authorized by the amendment of SDC 1960 Supp. 15.2303 by Chapter 46 of the Session Laws of 1968, cannot be raised, for you have advised the district in question has not been districted into school board member representation areas.
In this situation, it is my opinion, that both Question No. 1 and No.2, which you have submitted, be answered YES. The factual situation shows clearly that the consolidation was approved and that the election in question will occur prior to the effective date of such consolidation. The Legislature has named as a part of its agents, the "electors of any area to be included within such district," and has authorized such electors, as its agent, "to participate in a regular or special election" held at such time. Participation certainly must include the right to vote at such election. To allow such persons to vote, but not the opportunity of advocating their own candidates for the school board, is infringing on the authority delegated to such persons from the source of exclusive power in this area. The electors in such common school district who, by virtue of the consolidation which will become effective July 1, 1969, have the right not only to vote at such election, but in addition they have the authority to advocate and nominate residents of their area for such school board.
Before approaching Question 3, certain primary observations should be made. Any teacher hired under the conditions here present is presumed to know that the common school district offering him a contract for the 1969-70 school year cannot legally so act, for the reason that as of July 1, 1969, prior to the commencement of such school year, such common school district will be a nonetity and no longer exist. The teacher so employed would be most obtuse if he were to insist such contract with a nonexistent political subdivision were binding upon an existing subdivision of government. The only remedy such teacher may have would be to insist upon a right to damages arising from SDC 1960 Supp. 15.3808(6) which provides:
"The contract of a teacher shall become void without the ability of the teacher to collect damages when the school in which the teacher was hired to teach ceased to be operated by a vote of the electors."
In the factual situation herein presented, while it must be admitted that the electors have not, in so many words, voted to cease operation of a particular school, they have taken a more drastic step and voted to abolish the entire school district which operates the school.
It is my opinion the continuing teacher's contract law, notwithstanding, that in this situation, so that the independent school district board may efficiently and properly operate its school system, I must find that the school board of a district merging into or being consolidated into the independent school district, cannot tie the hands of the independent school board, and hire teachers who are to perform their services after the time such common school district ceased to exist.
Question No. 3 must be answered NO. A practical suggestion that should be made is that the board members of the common school district should acquaint such teachers in its employ of the effect of the consolidation and offer such teachers a contract for the 1969-70 school year, subject to ratification or acceptance by the board of the independent school district. In this way, such teachers would be assured of employment and the independent district assured that there would be teachers at such school.
Question No.4, in my opinion, requires an interpretation of SDC 1960 Supp. 15.2005(2) as last amended by Section 3 of Chapter 38 of the Session Laws of 1967. While it may be argued that this mandate of the superior officer--the Legislature--to its agent, the independent school district board, is limited only to questions of REORGANIZATION and does not affect CONSOLIDATIONS, it is my opinion such an interpretation is too restrictive. I am of the opinion this limitation on the power of the independent school district board applies, and after July 1, the school board, by itself, cannot terminate the operation of any elementary school operated by a common school district consolidated into such independent school district. Such termination of such school may be done only by the vote of the residents in such old district.
Question 4 is answered NO.
Questions 5 and 6 may be answered together. There seems no question that by virtue of SDC 1960 Supp. 15.3016 the Legislature has authorized its agent, the school board of an independent district, by itself, to discontinue high school in the district. While thereafter the electors may force such question to a vote, it remains that initially the school board can so act.
Thus Question 5 must be answered YES.
However, such drastic action, in my mind, would be disastrous. The school laws contemplate that to be an independent school district the district must operate a high school. Such action would then reduce the Belle Fourche Independent School District to a status of a common school district. SDC 1960 Supp. 15.2005, as last amended by Section 3 of Chapter 38 of the Session Laws of 1967, requires all territory or land area within this state to be an independent school district by July 1, 1970. Such act after providing for the residents of a particular district to attempt to accomplish this objective that thereafter the State Commission on Elementary and Secondary Education (created by Section 1 of Ch. 38 of the Session Laws of 1967) act as the delegated agent of the paramount power-the Legislature-in accomplishing this objective.
The net effect of a vote by the school board to discontinue high school in such independent school district might for awhile act that such school district would not have to bear the expenses of operating a high school. This result would be temporary only, for in such circumstances, the delegated agent of the Legislature-the State Commission on Elementary and Secondary Education, it must be presumed would create a school district-operating a high school-which would embrace the territorial boundaries of the old Belle Fourche Independent School District. Whether such area would be limited to the old independent school district or whether it would be added to another independent school district is a question that only the action of the State Commission will tell. The only definite conclusion that seems possible is that the territory now within the Belle Fourche Independent School District ultimately will be subject to taxation to operate a high school. Whether such high school, under such circumstances, would be located in Belle Fourche, of course, depends greatly on the action of the State Commission in creating such school district and the direction of the governing board and the electors within such district.
For what it is worth, I could not recommend any independent school board voting to discontinue its high school at this time unless, of course, such board believes the present territory of such school district would be best served by its being attached to and run from elsewhere.
Respectfully submitted,
Gordon Mydland
Attorney General
