Montana Advisory Opinions January 19, 2006: Mont. Att. Gen. Letter of Advice Dated January 19, 2006

Advisory Opinion Text

Mr. Mathew Johnson

Jefferson County Attorney

P.O. Box H

Boulder, MT 59632

Dear Mr. Johnson:

On behalf of the Jefferson County Superintendent of Schools, your predecessor, Valerie Wilson, requested an opinion concerning a longstanding dispute between the Jefferson County Superintendent of Schools and the Board of Trustees of the Jefferson High School District No. 1. The controversy arises from the prior county high school-elementary school district unification and a more recent restructuring of the high school district board under Mont. Code Ann. § 20-3-352(3) (1991).

Rephrased for purposes of this response, Ms. Wilson's request presented the following questions:

1. Was the 1969 unification of Jefferson County High School and Boulder Elementary School District negated upon voter approval in 1992 of an alternative method of electing school trustees of the Jefferson High School District No. 1?
2. If not, what requirements, if any, does unification impose on the continuing operations of Boards of Trustees of Jefferson High School District No. 1 and of Boulder Elementary District No. 7?

Because this request involves issues of current and historical statutory interpretation that are fact-specific to the governance of Boulder Elementary School District and Jefferson High School District, it has been determined that a letter of advice, rather than a formal opinion, is the appropriate response.

FACTUAL AND STATUTORY BACKGROUND

Until the late 1960's, Jefferson High School was a "county" high school and was governed by a board of trustees entirely separate from the one governing the Boulder

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elementary school district. In May 1968, the Jefferson County High School Board adopted a resolution to "unify" Jefferson County High School with the Boulder Elementary Grade School, in accordance with Rev. Codes Mont. 1947 §§ 75-4120 through 75-4138, as amended by 1963 Mont. Laws, ch. 261, and 1965 Mont. Laws, ch. 37.

Under those provisions, following approval by the local electorate, "[a]ny county in which a county high school has been established may . . . unify it with and make it a part of the public school system of the school district in which it is located." Rev. Codes Mont. 1947 § 75-4120. "If a majority of the votes cast at such election shall be FOR unification the county superintendent shall make an order that unification shall be effective the following July 1." Rev. Codes Mont. 1947 § 75-4120.1.

If the county has not been divided into high school districts, the county shall immediately upon unification, become a high school district in its entirety in the same manner as if action had been taken under Rev. Codes Mont. 1947 section 75-4602. Members appointed by the county superintendent of schools shall hold office until the next annual school election when there shall be elected a trustee to replace such appointed member.

Rev. Codes Mont. 1947 § 75-4120.2. The board of the county high school would be "dissolved, and . . . its powers and duties shall be assigned to the board of trustees of the school district with which the county high school was unified, provided that the board of trustees of said school district shall have, and is hereby given the power and authority to prepare and adopt the preliminary high school budget for the ensuing fiscal years beginning on said July 1st . . . ." Rev. Codes Mont. 1947 § 75-4125. The "board of trustees of [any school district that acquires the real and all other property of a former county high school . . . and the high school established shall be the high school of the high school district in which located . . . ." Rev. Codes Mont. 1947 § 75-4138.

In 1968, voters approved unification of Jefferson County High School with Boulder Elementary School District No. 7 on a 128-74 vote, and the unification took effect on July 1, 1969. As of that date, Jefferson County High School ceased to exist and the Jefferson High School District came into being. The initial high school board of trustees consisted of nine members: the five trustees of the Boulder Elementary School District No. 7, plus one member each from Basin, Jefferson City, Clancy and Montana City. Following unification, the Boulder Elementary District board and the Jefferson High School District board conducted their meetings on the same day, with the smaller Boulder Elementary District board acting on elementary matters first and the larger Jefferson High District board acting on high school matters second. Budgets, mill levies and contracts

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for the Jefferson High School District were otherwise separate from those of the Boulder Elementary School District.

In 1971, the laws under which the Jefferson County High School was unified with Boulder Elementary School were repealed. 1971 Mont. Laws, ch. 5, § 496. Legislative enactments adopted concurrent to the repeal referred to "establish[ment of] a unified school system under a unified board of trustees" following a school election, 1971 Mont. Laws, ch. 5, § 197, now codified as Mont. Code Ann. § 20-6-312(1) (2003).

In 1991, the Montana legislature amended Mont. Code Ann. § 20-3-352 to include an "alternative method" of electing the members of a high school district board of trustees. 1991 Mont. Laws, ch. 528, § 1. This alternative was available to high school districts where more than half of the district's electors resided outside the territory of the elementary school district in which the high school district buildings are located. Like the unification process, the alternative method could only be exercised following a district election and voter approval of the alternative method proposition.

Mont. Code Ann. § 20-3-352 (1991) provided, in pertinent part:

(3)(a) If more than half of the electors of the high school district reside outside the territory of the elementary school district in which the high school district buildings are located, at least 10% of the electors of the high school district who are qualified to vote under the provisions of 20-20-301 may petition the county superintendent, requesting an election to consider a proposition on the question of establishing the following alternative method of electing the members of the high school district board of trustees:
(i) one trustee to be elected from each elementary school district with territory included in the high school district; and
(ii) two or three trustees to be elected at large in the high school district whichever number results in an odd number of members on the board of trustees.
(b) (i) When the county superintendent receives a valid petition, the county superintendent shall order the trustees of the high school district to conduct an election on the next regular school election day on the proposition allowed under the provisions of subsection (3)(a).
(ii) If the electors of the district approve a proposition to establish the alternative method of electing the high school board of trustees, the county superintendent shall order that the members of the board of trustees to elected according to subsection (3)(a) at the next regular school election.
(c) Whenever the trustees are elected at one regular election under subsection (3)(b), the members who are elected shall draw by lot to

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determine their terms of office. The terms of office by trustee position must be divided as equally as practicable among 1-, 2-, and 3-year terms.
(d) A petition to call an election for the purposes of subsection
(3) may not be submitted to the county superintendent more than one time in each 5-year period.

In 1992, pursuant to this procedure, Jefferson High School District electors petitioned the Jefferson County Superintendent of School for an election to approve an alternative form of electing trustees. The Jefferson County Election Administrator certified the petition on February 7, 1992, and on February 11, 1992, then County Superintendent of Schools Sandra Streib ordered an election "to consider a proposition on the question of establishing an alternative method of electing the members of the high school district board of trustees . . . ." On April 7, 1992, the election was held and by a vote of 556-163, the voters approved the alternative form of election of high school trustees.

The following spring Superintendent Streib ordered that:

1. . . . an election [] be held at the Boulder Elementary School, the Jefferson City Hall, the Clancy School, the Montana City School, and the Basin Hall on the 6th day of April 1993 for the purpose of electing new members of the Board of Trustees of Jefferson High School District No. 1, Jefferson County, Montana.
2. The members shall be elected as follows: 1) one trustee to be elected from each elementary school district with territory included in the high school district and; 2) three trustees to be elected at large in the high school district.
3. The members who are elected shall draw by lot to determine their terms of office. The terms of office by trustee position must be divided equally as practicable among 1-, 2-, and 3- year terms.

Since the April 6, 1993 election, the Jefferson High School board has been composed of seven trustees, one elected from each elementary school district within the territory of the high school district--Basin, Boulder, Clancy and Montana City--and three elected at-large in the high school district, in accordance with the alternative method requirements of Mont. Code Ann. § 20-3-352(3)(a) (1991). The Jefferson High School board meets separately from the Boulder Elementary School board. The two districts currently share a superintendent, apportioning the superintendent's salary between them; however, budgets, mill levies, and contracts of the two districts are otherwise handled separately.

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DISCUSSION AND ANALYSIS

The Jefferson County Superintendent of Schools contends that the 1969 unification is still in effect, and therefore, the functions of the unified district must be carried out by a unified board of trustees, not two (2) separate boards meeting and acting independently. The Jefferson High School board maintains that while the composition of the Jefferson High School board changed following the 1992 "alternative method" election and its meetings are no longer held in conjunction with those of the Boulder Elementary School board, the Boulder Public Schools still function as a unified public school system, as they have since 1969, and nothing further is required.

When construing a statute, one must ascertain what it provides, "not to insert what has been omitted or to omit what has been inserted," Mont. Code Ann. § 1-2-101. "[F]ashion[ing statutory limits] out of thin air" lies beyond the role of interpreting Montana statutes. Kiely Constr. L.L.C. v. City of Red Lodge , 2002 MT 241, ¶ 75, 312 Mont. 52, 57 P.3d 836.

Even though the 1971 code expressly referenced unification in terms of operation "under a unified board of trustees," that language does not affect the Jefferson County unification because the 1971 code revision does not contain any provision for retroactive applicability of its changes. Absent such expression, it cannot be applied after-the-fact. Mont. Code Ann. § 1-2-109. Instead the Jefferson County unification must be reviewed, retrospectively, with regard to the statutory language in effect at the time.

The laws under which Jefferson County High School was unified with the Boulder Elementary School district, though now repealed, contemplated "unification" in terms of the county high school becoming "a part of the public school system of the [elementary] school district in which it is located." The phrase "public school system" is not defined in Montana statutes and at present, it only appears in few unrelated statutes--Mont. Code Ann. §§ 7-1-111, 20-32-101, and 41-3-108--and, perhaps most notably, in article X, section 9(3)(a) of the Montana Constitution: "There is a board of public education to exercise general supervision over the public school system and such other public educational institutions as may be assigned by law . . . ."

The phrase "public school" is likewise not statutorily defined, but a statutory definition of the word "school" as used in title 20 can be found, and it "means an institution for the teaching of children that is established and maintained under the laws of the state of Montana at public expense." Mont. Code Ann. § 20-6-501 (2003).

Absent statutory definition, the plain meaning of a word controls its usage in a statute. Spoklie v. Mont. Dep't of Fish, Wildlife & Parks , 2002 MT 228, 1 25, 311 Mont. 427, 56 P.3d 349.

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Webster's Ninth New Collegiate Dictionary defines "system" as "a regularly interacting or interdependent group of items forming a unified whole;" "a group of interacting bodies under the influence of related forces;" or "an organization forming a network especially] for a distributing something or serving a common purpose." In the context of the former "unification" statute, the central concepts of the word "system" are (1) interaction between two or more bodies; and (2) the "form[ation of] a network [for a] common purpose."

Webster's defines "part", as used in this context, as "one of the often indefinite or unequal subdivisions into which something is or is regarded as divided and which together constitute the whole."

Applying the commonly understood definitions of "part" and "system" to the statutory phrase "a part of the public school system of the school district in which it is located," one concludes that the objective of "unification," as understood within the context of these statutes, was simply to bring a county high school district, formerly authorized as a unit of county government, into a network with the public elementary school system operating within the same county.

It appears that any unity of governance or control over the newly-created high school district and the preexisting elementary school district during the period of 1969 through 1991 was a function of the then-statutorily intertwined boards of trustees. While both boards of trustees had a variety of statutory duties that each was required to perform, holding periodic meetings, adopting budgets, hiring personnel, among them, I was not able to locate, nor did the Jefferson County Superintendent of Schools identify, a single Montana statute that formerly compelled, or currently requires, joint or successive meetings between the boards of trustees of high and elementary school districts unified under the now repealed, circa-1968 statutes. As a practical matter, however, because the five elementary trustees also served on the high school board--and thus constituted a majority of that board--the two boards acted as a unified or single board as to any high school district issues. Unity of governance and interest was achieved due to the predominance of the elementary trustees on the high school board.

With the advent of a recomposed high school district board of trustees following the 1992 election, the two districts no longer share common trustees. Instead, each district's trustees now are chosen via distinct election processes authorized under state law. However, the fracture of common membership has not deterred the operation of the two districts as a "public school system" within Jefferson County. My understanding is that the districts jointly hire a school superintendent, allocate the superintendent's salary, and those of all commonly-employed personnel, between the two districts, and share common building spaces for educational services. Joint appointment and employment of a district

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superintendent may be required under Mont. Code Ann. § 20-4-401(1) (2003); however, that determination exceeds the scope of this response.

As they have since the 1969 unification, Jefferson High School District No. 1 and Boulder Elementary School District No. 7 remain separate legal entities under the law. Each district provides education services to the students within its district in accordance with state law. The 1992 vote changed the governance structure for the high school district in a manner that effectively ended any appearance that the two districts were operating under a single or unified board, but it did not change the 1969 mandate that the two districts be operated as a public school system. Montana statutes do not require the two boards to hold joint or successive meetings to sustain operation of the two districts as a public school system. Minimum levels of interaction or interrelationship between the two boards cannot otherwise be opined.

In summary, the 1969 vote unifying the Jefferson County High School District with the Boulder Elementary School District was not altered by the 1992 vote approving an alternate composition of the Jefferson County High School District Board of Trustees. The sole requirement of unification, as required in now repealed Montana statutes, is the operation of the two districts as a public school system. Present or former Montana statutes do not require the respective boards of trustees of the two districts to hold joint or successive meetings to attain or maintain unification.

This letter should not be construed as a formal Opinion of the Attorney General.

Sincerely,

BRENDA NORDLUND

Assistant Attorney General

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