Oregon Advisory Opinions November 19, 1963: OAG 63-154 (November 19, 1963)

OAG 63-154.

In an opinion of this office dated September 24, 1963, No. 5705, it was held that a plan for further school district reORGAnization of school districts which involves territory lying in two or more counties requires the concurrence or joint action of the county committees of the respective counties affected by the plan.

You now advise that on October 22, 1963, the plan in question was presented to the State Board of Education and the state board deferred taking action pending notice of concurrence by the Yamhill County Board. It is being contended by the Superintendent of the Polk County Intermediate Education District that the state board is limited in its authority to examine and approve plans for reORGAnization, and that the state board should take jurisdiction and recognize the proposed plan for reORGAnization notwithstanding failure and refusal of the Yamhill County Board to consent thereto.

"Is the State Board required to review the legal aspects of a reORGAnization plan? i.e. Must it see that in the case of a plan affecting two Intermediate Educational Districts the concurrence of both are indicated as provided in subsection (1) of ORS 330.530 as amended by Chapter 282, Oregon Laws 1963."

"(1) In accordance with ORS 330.530 to 330.570, the committee may prepare further reORGAnization plans for the formation of administrative school districts within the county. A plan for the reORGAnization of school districts involving territory lying in two or more counties shall be prepared by the joint action of the committees of the respective counties.

"(2) The reORGAnization plan shall provide for the incorporation of territory of the county into one or more administrative

school districts * * *. The reORGAnization plan shall set out:

"(a) The boundaries of existing school districts and the boundaries of the district or districts proposed under the plan.

"(b) Where necessary, recommendations respecting the location of schools, utilization of existing buildings and the construction of new buildings.

"(c) Where authorized under ORS 330.533, a provision for local school committees if the county committee determines that local school committees are desirable.

"(d) The transportation requirements under the plan.

"(e) An equitable adjustment of all the property, assets, debts and liabilities of each existing school district which is affected by the plan, determined under ORS 330.540 and the manner of consummating such adjustment.

"(h) A summary of the reasons for each proposed reORGAnization of school districts.

"(i) Such other reports, records and materials as the State Board of Education may require.

"(j) Notwithstanding the provisions of ORS 334.020, a designation of the rural school district in which the proposed administrative school district is to be included if such proposed administrative school district is a joint district. " (Emphasis supplied)

ORS 330.550, as amended, provides for the holding of a hearing by the county committee for reORGAnization with respect to the proposed reORGAnization plan, and ORS 330.550 requires published notice to be given of the "final plan" of reORGAnization adopted by the committee. ORS 330.560, as amended, provides:

"The State Board of Education shall receive and examine the plans for the reORGAnization of school districts submitted to it by the committees. If within 30 days after adoption of a final reORGAnization plan by the committee the State Board of Education receives any petition or petitions for revisions or modifications of such plan, it shall set such petition or petitions for hearing before the State Board of Education or an authorized representative of the board. * * *"

ORS 330.565, as amended, reads in part:

"Within 60 days after the hearing held as required by ORS 330.560 or, if no hearing is required, within 60 days after adoption of the final reORGAnization plan by the committee, the State Board of Education shall approve the plan if the board finds that the plan provides for a satisfactory school districting system. If the plan is approved the State Board of Education shall notify the committee or committees concerned and each petitioner referred to in ORS 330.560 within 10 days of such approval. * * *"

ORS 330.570, as amended, provides:

"If the State Board of Education finds that a final reORGAnization plan submitted by a committee is unsatisfactory, or that the adjustment of property, assets, debts and liabilities is inequitable, the State Board of Education shall so notify the committee within 60 days after the hearing held as required by ORS 330.560 or, if no hearing is required, within 60 days after adoption of the final reORGAnization plan by the committee, stating the reasons for nonapproval. A revised plan shall be prepared by the committee within 90 days from the date of notification of nonapproval. Upon request of the committee, the State Board of Education shall assist the committee in revising the plan so as to make it satisfactory. The revised plan shall be subject to the same procedures as are provided * * * with respect to the original plan."

ORS 330.585 provides:

"(1) Within 30 days after the date the committee receives an approved plan from the State Board of Education, the county superintendent shall call a special election of the legal school voters residing within the territory of each administrative school district proposed to be formed under the approved plan * * *."

The foregoing constitute the basic steps in school district reORGAnization. The contention is evidently being made that notwithstanding the express provision of ORS 330.530 (1) which requires reORGAnization plans involving the territory lying in two or more counties to be prepared by the "joint action of the committees of the respective counties," the State Board of Education should ignore this requirement and proceed to approve or disapprove the plan upon its merits. We observe that ORS 330.565, supra, relating to the presentation of plans before the State Board of Education, indicates that the state board "shall approve the plan if the board finds that the plan provides for a satisfactory school districting system" and does not specifically direct the board to examine the plan for legal sufficiency.

We think, however, that the authority of the State Board of Education to examine and review plans for legal sufficiency is necessarily implied in the statutory authority to approve or disapprove plans for school district reORGAnization, particularly where a jurisdictional defect is apparent from the face of the plan.

To illustrate, in Heppe v. Moosberry, (1932) 350 Ill. 641, 183 N.E. 636, the statute required changes in boundaries of school districts in different townships to be made by the "concurrent action" of the several boards of trustees of the school districts involved, which provision in the statute was held to be a jurisdictional matter and required concurrence by the several boards of trustees. The same statute was con

strued in the earlier case of People v. Dick, (1914) 263 Ill. 66, 104 N.E. 1050, 1051, where the court said:

"* * * The action of the trustees upon the petition must be concurrent. The action of each board is required. Final action of the trustees means the finished action of all the boards required to act. * * *"

The Oregon Supreme Court has recognized the authority of district boundary boards to inquire into jurisdictional matters in proceedings involving school district boundary changes. Thus in State ex rel. v. Hall, (1914) 73 Or. 231, 144 P. 475, the court construed a statute which involved the formation of a union high school district upon petition presented to the district boundary board and it was said in part, at page 237:

"* * * When such petitions are presented to the boundary board, it is the duty of such board to determine whether the petitions are as required by the statute and signed by the requisite number of legal voters in each of the districts petitioning to be united as a union high school district. * * *" (Emphasis supplied)

In State ex rel. v. Evans, (1916) 82 Or. 46, 53, 54, 160 P. 140, it is said:

"* * * The petition from school district No. 25 does not recite that it was signed by one third of the legal voters, and the accompanying certificate of the chairman and clerk only certifies that the petition 'contains the legal voters, at school elections of this district, to the best of my knowledge and belief.' The district boundary board did not make an express finding that the petition was in fact signed by one third of the legal voters, nor is it shown or even claimed that the board had any evidence of the number of legal voters except the petition and the remonstrance; and those two papers, when taken alone and without further information, warned the board that the petition might not contain one third of the legal voters, and consequently, in the language of State v. Woods, 233 Mo. 357 (135 S.W. 932), an order calling an election would be 'void for legal fraud and lack of jurisdiction' if the board had no information concerning the number of legal voters except the statements found in the petition and remonstrance and later developments revealed that the petition did not contain the names of one third of the legal voters."

"* * * The petition is jurisdictional, and unless it is signed by 'not less than one third of the legal voters,' it is in legal contemplation no petition at all, and consequently an order calling an election on a petition which does not contain the required number of signers is like an order calling an election without any petition. * * *"

"When the petitions are filed they would naturally receive a cursory examination, and the board would still have the right to examine and hear any objections either to the form of said petitioners, or whether the petitioners were duly qualified as such, as well as to entertain any remonstrances that may be filed against the proceeding. * * *"

"* * * They were in no sense, and did not purport to be, remonstrances; and they were ineffective as petitions, because they did not include a petition from one of the districts incorporated within and affected by the resolution and election in said district No. 30-44. * * *"

In response to your first inquiry it is our opinion that the State Board of Education has the authority and it is its duty to review plans for reORGAnization submitted to it to ascertain whether or not jurisdictional requirements set forth in ORS 330.530 have been complied with, and that the statutory requirement for joint action of the county committees involved in a plan for formation of a joint school district with territory in two or more counties, is a jurisdictional matter.

Your second question is:

"ORS 330.535, 330.545 and 330.560 also 330.607 set forth the education requirements of a plan. Is the State Board restricted to consideration of the items included in reaching a decision?"

In response to your second question, the statutes referred to are the matters which the board should consider when a plan for school district reORGAnization

meeting legal requirements has been submitted to it and official cognizance of such plan has been taken by the state board. If jurisdictional elements of a plan are lacking, the State Board of Education should not take official cognizance of the proposed plan of reORGAnization until the jurisdictional matters are resolved. In this case the state board should advise the county committees (now intermediate school district board) that official cognizance cannot be taken of the plan, nor can the plan be either approved or disapproved under the law, until official concurrence has been received from the committees of respective counties involved.