June 4, 1980

Mr. David S. Bonde 
State Director 
Division of Vocational-Technical Education 
Kneip Building 
Pierre, South Dakota 57501

Official Opinion No. 80-38

Cooperative Board of Western Dakota Vocational-Technical Institute

Dear Mr. Bonde:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

In 1978, the post-secondary vocational-technical institutions in Rapid City (Black Hills Area Voc-Tech School) and Sturgis (Northwestern Area Voc- Tech School) were combined into one administrative unit under the Meade School District 46-1 (Sturgis) Board of Education.  The combined operation is now known as Western Dakota Vocational-Technical Institute offering courses in Rapid City and Sturgis.  When the two vocational-technical schools were combined, a non-policy making Cooperative Board was created.  Its membership consists of six members--three appointed by each participating school board. The Cooperative Board functions as a 'sounding board' for the administration of Western Dakota Vocational-Technical Institute and makes recommendations to the Meade District Board of Education.  All matters brought to the Meade District Board of Education must initially be passed upon by the Cooperative Board.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Can the Cooperative Board become the policy making board for Western  Dakota Voc-Tech Institute pursuant to 13-39-37? 

a.  If the answer to question one is 'yes,' can the two school boards continue to appoint the membership of the Cooperative Board, or must the membership come from a general election? 

b.  If the answer to question one is 'yes,' would the two participating school districts have equal fiscal responsibility for maintaining and operating Western Dakota Voc-Tech Institute? 

2.  Would the creation of such a board violate SDCL 13-39-38? 

3.  If the answer to question one or two is 'no' due to existing statutes, would you specify the statutes in question?

IN RE QUESTION NO. 1:

The statute referred to in your first question, SDCL 13-29-37, grants authority to the State Board of Vocational Education to promulgate rules, pursuant to SDCL 1-26, governing the operation and maintenance of post- secondary vocational education schools.  I do not believe that that statute grants authority to the State Board of Vocational Education to supplant the authority of local school boards to be ultimately responsible for the administration of post-secondary vocational schools, including Western Dakota Voc-Tech Institute, or to establish new policy making entities.  I do, however,  believe that SDCL 13-39 contains a procedure for establishing new, autonomous boards to operate post-secondary schools.  SDCL 13-39-34 provides: 

Any school board not operating a post-secondary vocational education school as of July 1, 1975, may petition the board to classify one or more of its schools as a post-secondary vocational education school.  Upon receipt of the petition, the board shall examine the petition and any supporting evidence submitted therewith.  The board may conduct hearings, investigate school records, and secure other data relating to the school district, its geographical location, the demography and economy of the area, and any other facts relating to the proposed post-secondary vocational educational school which it may deem appropriate.

I conclude from the facts you presented that the Western Dakota Vocational-Technical Institute was not operating as of July 1, 1975. Accordingly, it appears that the Rapid City Board and the Sturgis Board could combine in presenting a petition to the State board of Vocational Education for recognition of a board to be directly responsible for the administration of and operation of Western Dakota Vocational-Technical Institute.

In regard to your questions 1a. and 1b., it appears to me that the statutory scheme presented in SDCL 13-39-33 through 36 provides the mechanism for answering those questions.  The schools applying to the State Board of  Vocational Education for recognition as the operating authority of a post- secondary vocational school, should specify in their petition, the method of constituting the newly created board and the fiscal responsibility for operating the institute.  The petition should take the form of a proposed charter for the operation of the post-secondary vocational school.

SDCL 13-39-35 requires that should the State Board of Vocational Education conclude that the classification petitioned for would further the educational interest of the state or more nearly equalize educational opportunities, or be a potential benefit to persons of all communities of the state, and is in accordance with the plans and program of the State Board of Vocational Education, the only action the Board may take is to recommend that the petition be approved by the Legislature.  I readily acknowledge that the statutes herein interpreted are not the clearest when applied to the factual situation you present; however, since any petition or charter for independent operation of a post-secondary school must be approved by the Legislature, I am of the opinion such approval would cure any defects in the petition procedure.  Once the petition is approved by the Legislature, the State Board of Vocational Education is authorized to promulgate rules for its operation and maintenance, pursuant to SDCL 13-39-36 and 37.

IN RE QUESTION NO. 2:

In response to question two, I do not believe that creation of this board would violate SDCL 13-39-38.  Since you indicate that Rapid City and Meade School Districts are now providing fiscal support to the operation of Western Dakota Vocational-Technical Institute, were the new board to be created, distribution of funds for use by the new board would follow the terms of the petition and charter previously referred to.  Since the statute you refer to requires distribution of funds to school boards having jurisdiction over post- secondary vocational educational schools, depending upon the provisions of the new board's charter, it may be that the board having jurisdiction over this post-secondary vocational-technical school would be the board created by the Legislature's action.

IN RE QUESTION NO. 3:

Finally, in view of the above discussion, question three does not require an answer.

Respectfully submitted,

Mark V. Meierhenry
Attorney General