August 18, 1981
Mr. Thomas E. Carr, Esq.
Stephens, Quinn, Carr, Tschetter and Buckmaster, P.C.
117 Fifth Avenue
Belle Fourche, South Dakota 57717
Official Opinion No. 81-30
Community Swimming Pool on School Property
Dear Mr. Carr:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
A civic organization in the city of Buffalo wishes to construct a community swimming pool. This organization proposes to raise all the necessary funds to construct this pool by private donations. They have proposed to the school board of the Harding County School District that this pool be built on school property adjacent to the existing school building. After the pool and a building to enclose it are complete, the organization proposes to donate the entire facility to the school district. The school district would be responsible for operation and maintenance of the swimming pool from that time on. The group contemplates that the pool would be used for school activities during the school term and available for use by the general public during the school term and during the summer.
Based on the above facts, you have asked the following questions:
QUESTIONS:
1. May the school district allow an outside group to construct a community pool on school district property without a disposition in accordance with SDCL Ch. 13-21?
May the school district grant an outside group 'the use of any land belonging to the school district for any purposes which it may deem advisable as a community service' (in accordance with SDCL 13-24-20) for the construction of a community pool?
3. Would the proposed pool be a public improvement as defined by SDCL 5-18-1?
4. May the school district allow an outside group (using no public funds) to construct a pool on school property without compliance with (a) the plans and specifications and bidding requirements of SDCL 13-20-3; and (b) the examination and approval of the State Superintendent of Elementary and Secondary Education as required by SDCL 13-24-14?
5. May the school district accept a gift under SDCL 13-14-5 which commits the school district to considerable future maintenance expense?
IN RE QUESTION NO. 1:
SDCL Ch. 13-21 addresses disposal of school district property. Based upon the facts you present it does not appear to me that the District intends to dispose of any property belonging to the District. Rather, the District apparently contemplates entering into an agreement with a private organization to allow use of district land for construction of a swimming pool. Note: such agreements are authorized pursuant to SDCL 13-14-5, infra. If it is contemplated that title to the real property in question would be transferred to the civic group or any other entity the provisions of SDCL Ch. 13-21 must be followed. If, however, no transfer of title is contemplated SDCL Ch. 13-21 would not be applicable. The answer to Question No. 1 is yes.
IN RE QUESTION NO. 2:
SDCL 13-24-20 provides:
The school board may rent or grant the use of school facilities or of any land belonging to the school district for any purposes which it may deem to be advisable as a community service for such compensation as may be determined by it, provided that such use shall not interfere with school activities. Any person or persons or public body so using any such school facilities or land shall be responsible to such school district for any and all damages that may be caused by reason of such use or occupancy. The school district shall not be held liable for any suit for damages which might arise as the result of such use or occupancy.
The plain words of the statute set out above indicate that any particular use of land belonging to the school district deemed by the board as a community service is acceptable. The only restriction on this authority is that the use 'shall not interfere with school activities.' My predecessor in 1957-58 A.G.R. 244 concluded that a school district was not authorized to donate land for a community swimming pool under this statute prior to the 1960 amendment. In the present situation, the facts presented do not appear to involve a donation of land to any other entity but merely a grant of use during the period of construction. In view of these differences, the answer to Question No. 2 is yes.
IN RE QUESTION NO. 3:
SDCL 5-18-1(2) provides:
'Public improvement' in one the cost of which is payable from taxes or other funds under the control of the public corporation and also local improvements for which special assessments are to be levied.
Since, according to the facts presented, no 'taxes,' 'funds under control of the public corporation,' or 'special assessments' are to be used in underwriting the cost of the pool, it would not be a public improvement as defined in SDCL 5‑18‑1. The answer to Question No. 3 is no.
IN RE QUESTION NO. 4:
SDCL 13-20-3 provides:
Except for purchases made pursuant to chapter 13-34, whenever any school facilities are to be built or remodeled, or improvements are to be made to school sites, or when supplies or equipment are to be purchased contracts shall be let in accordance with chapter 5-18 and in accordance with plans and specifications that shall be furnished by the school board.
Based upon the facts presented it does not appear that the District will be using public funds to construct school facilities. Accordingly, the bidding requirements of SDCL 13‑20‑3 or Ch. 5-18 would not be applicable. The answer to Question 4(a) is yes.
SDCL 13-24-14 provides:
All plans and specifications for the erection and remodeling of school buildings and all sites for said buildings in all school districts shall be submitted to the superintendent of elementary and secondary education for examination and approval before advertising for bids on such plans and sites by the school district board.
The superintendent of elementary and secondary education shall approve such buildings and sites under the rules as established by the state board of education and in so doing shall act in cooperation with other departments and agencies of government.
Reference should be made to SDCL 13-24-20 to set out above especially regarding the restriction on the district's authority to grant use of district land in that 'such use shall not interfere with school activities.' Since the facts presented indicate that an agreement will be struck between the civic group and the school district board where, in consideration of the civic group's commitment to transfer to the District the completed swimming pool, the District will allow use of its land for construction of the pool, the District must be certain that this use of land will not 'interfere with school activities.' The only practical way in which the District may be assured that the facility will not interfere with school activities is to be certain that the proposed facility is suitable for school purposes and will not create a hazard for school children or employees. Therefore, the District should require as part of the agreement for use of the school land that the civic group receive approval by the State Superintendent of Elementary and Secondary Education of plans and specifications for the facility. A like requirement should be made for assuring compliance with all other statutes, regulations, and ordinances such as plumbing codes, fire safety, health requirements, to name but a few. The answer to Question 4(b) is no.
IN RE QUESTION NO. 5:
SDCL 13-14-5 provides:
Every school district in this state is hereby empowered to accept, own, manage, and dispose of any grant, gift, devise, or bequest of money, or real or personal property; and the school board of such school district shall have power to enter into such agreement for the receipt thereof upon such terms as shall be to the best interest of all parties and to make such rules and regulations as it may deem best for the ownership, management, and control of such property.
While it is possible that acceptance of the swimming pool facility will require considerable maintenance and upkeep in the future, it does not appear that SDCL 13-14-5 restricts the authority of a school district board to accept a gift based upon such considerations. It must be understood that if future school boards determine that the maintenance of the pool facility is too onerous a burden the board could close down or dispose of the facility pursuant to SDCL Ch. 13-21. The answer to Question No. 5 is yes.
My research into this question leads me to suggest that the District might consider entering into agreements for alternative methods of financing the upkeep and maintenance on the swimming pool facility pursuant to SDCL Ch. 42-1 and 42-2.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
