STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

November 21, 1969

Senator Alfred J. Burke
Newell, South Dakota 57760

OFFICIAL OPINION NO. 69-91

Authority of county boards of education to make minor boundary changes after action by the State Commission on Elementary and Secondary Education

Dear Senator Burke:

I acknowledge receipt of your request for an official opinion on the following statement of facts:

The State Commission on Elementary and Secondary Education, by resolution on September 23, 1969, created an independent school district pursuant to 13-6-7.3 (1) 1969 Supp. to SDCL 1967, whereby the Dupree Independent School District, Ziebach County, and the Faith Independent School District, Meade County, and certain common school districts in Perkins County, Meade County and Ziebach County were combined.

The residents of the Perkins County Common School Districts, now a part of the new entity, desire by means of a minor boundary change under Section 13-6-85 SDCL 1967, to transfer some of the area in the former common school district, to an independent school district in Perkins County.

The questions presented are as follows:

1. May this be accomplished under Section 13-6-85, SDCL 1967 (the boundary change statute) in view of the action taken by the State Commission?

2. If the answer is in the affirmative, what county board or boards of education must approve the application?

Question No.1 is answered in the AFFIRMATIVE.

Section 3(1) Chapter 38, Session Laws of 1967, now found in Section 13-6-8 1969 Supp. requires that all common school districts, except those in the superimposed high school, are to become part of an approved independent school district prior to July 1, 1970. This is the primary objective of the State Commission on Elementary and Secondary Education, that is, to place all common school districts, except those in the superimposed high school district, by dissolution thereof and including the same in an independent school district prior to July 1, 1970.

However, in accomplishing its duty, the State Commission must take into consideration the standards and regulations adopted by the South Dakota State Board of Education on January 20, 1969.

Actions authorized by the State Commission are found in Section 13-6-8.3 1969 Supp. which includes the right to create an approved independent school district by resolution, which the Commission did on September 23, 1969.

Except for the notification by the State Superintendent of Public Instruction to the county boards of education and the school district boards affected and the direction to the county superintendent of schools to initiaite school board election procedures, as provided for in Section 13-6-8.4, which notification in this case has been given, and the right to subsequently correct a clear and unmistakable error by amending the original resolution to correct such error, it is my opinion that the State Commission, with respect to the independent and common school districts herein involved, complied with the mandate of the Legislature by passing such resolution and with that the Commission's obligation under the statute ended.

Chapter 38, Session Laws of 1967. did not repeal the minor boundary change statute nor relieve the county boards of education of their duties in respect thereto, and it is my opinion that all of such statutory rights are in existence and that they are not inconsistent with the authority of the State Commission on Elementary and Secondary Education, but consistent with the intent of Chapter 38, Laws of 1967, and that applications for minor boundary changes to the appropriate county board, or boards of education, may be made either prior to or subsequent to action by the State Commission. A minor boundary change, or changes, does not and should not constitute a reorganization. Sunnywood Common School District vs. Board of Education. 131 NW 2d 105.

Consequently, I am of the opinion that Question No. 1 must be answered in the AFFIRMATIVE, and that a minor boundary change may be made if otherwise eligible under the statute.

Question 2 is answered as follows:

The new entity with which we are here concerned consists of territory in three different counties; therefore, it is defined in Section 13-6-1(9) as a joint district.

The creation by the State Commission of the new district was a reorganization as defined in 13-6-1(1) which provides:

Reorganization shall mean and include the formation, consolidation or subdivision of school districts.

Section 13-6-53 provides as follows:

Any power or duty which a county board or county officer has under this chapter involving reorganization of its own school districts shall be performed jointly by all county boards and county officers of those counties containing territory involved in the reorganization of joint school districts.

It will be necessary for all three county boards of education to approve application [or the minor boundary change upon compliance with the provisions of Sec. 13-6-85. See Knodell Common School District No. 58, Yankton County v. County Board of Education, Yankton County, 144 NW 2d 38, 1959960 AGR 692, 1867-68 AGR 169, 1965-66 AGR 40.

Respectfully submitted,

Gordon Mydland
Attorney General