August 21, 1990
Dr. Henry G. Kosters
State Superintendent of Education
Education and Cultural Affairs
700 Governor's Drive
Pierre, SD 57501-2291
OFFICIAL OPINION NO. 90-35
Reorganization incentive statutory change
Dear Dr. Kosters:
You have requested an official opinion from this Office regarding the following factual situation.
FACTS:
On January 17, 1989, a completed and approved plan to reorganize the Gary and Clear Lake School Districts was submitted to the State Superintendent's Office. The plan was designed to form a new school district called the Deuel School District. In February, the voters of the two districts voted to reorganize. The margin of the vote was 83.6% in Clear Lake and 87.7% in Gary to approve the reorganization plan, effective 7-1-89.
By the time the July 1, 1989, effective date had been reached, a statute had been passed during the 1989 legislative session which limited the amount of reorganization incentive money that could be awarded to school disticts. The new limit is based upon an average daily membership (ADM) of 125 high school children (SDCL 13-13-38.1).
During the time discussions and negotiations were ongoing between the two districts, there was no limitation on the number of ADM high school children.
In effect, the rules were changed after the people, or at least 85% of the voters, had approved the plan.
Based upon these facts, you have asked whether the incentive money to be distributed to the Deuel School District should be based upon the maximum set forth in the statute which became effective on July 1, 1989, or whether the previous statute, which did not contain this limit, may be applied.
Notwithstanding the school district's reliance on the previous statute which contained no limitation on the number of ADM high school children, the school district may only receive the funds authorized by the currently effective statute.
School districts, being creatures of the Legislature, do not have a vested right to retain their status or territory. Nelson v. Deuel County Board of Education, 128 N.W.2d 554, 556 (SD 1964). School districts are subject to periodic change, alteration or abolishment by the Legislature. Id. Likewise, they are subject to periodic changes in funding. In effect the "status" of being a district anticipating certain funding has been altered by the Legislature. SDCL 13-13-38.1, upon which this question is predicated, was the subject of a Legislative change. When exercising its authority to revise the conditions for altering school district boundaries, the Legislature is not even required, as a matter of law, to consult with or give notice to any of the inhabitants of the school district. Thies v. Renner, 106 N.W.2d 253 (SD 1960). In other words, a school district has no vested right to obtain the funds that it may have received under the previous law or to be consulted when the Legislature is in the process of changing the funding formula.
In addition, the State Superintendent can not authorize funding for a school district in excess of the amount that the State Legislature has now deemed appropriate for that school district. Because the Office of State Superintendent is an administrative agency, its authority is limited to the powers granted to it by statute. Renner, at 255. Thus, the Superintendent's authority is limited by SDCL 13-13-38.1 in its current form, and incentive monies must be distributed in accordance with that statute.
Respectfully submitted,
ROGER A. TELLINGHUISEN
ATTORNEY GENERAL
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