Oregon Advisory Opinions October 06, 1959: OAG 59-133 (October 6, 1959)

OAG 59-133.

You have requested our opinion upon a problem confronting the County School Superintendent of Baker County. His letter, addressed to you, reads in part:

"There have been questions raised regarding the annexation of Muddy Creek School District #17, a common school district located in Baker County but joint with Union High School District #1 of North Powder, Union County, to School District #5J of Baker, which is now joint with Union County as a result of a small amount of territory acquired by the annexation of Pondosa School District #25J-Union County and 26J-Baker County."

The first question upon which you request our opinion is as follows:

"1. If a petition for annexation has been legally prepared (as is required by ORS 329.710 to 329.770 inclusive) by the patrons of Muddy Creek School #17 requesting annexation to school district #5J-Baker, will they be required to have the concurrence of the Union and Baker County ReORGAnization Committees? Will School District #5-J, Baker be required to have this concurrence? It is agreed that in the transaction of any business involving such property it is better to have the concurrence of both county committees, but is it required?"

ORS 330.645 provides as follows:

"The procedure provided in ORS 330.505 to 330.780 is the exclusive procedure for effecting reORGAnization of school districts after August 20, 1957, except that consolidation, reORGAnization or boundary changes may be made under the procedures existing prior to August 20, 1957, when the committee created pursuant to ORS 330.505 to 330.780 for the county in which the affected districts lie finds that such consolidation, reORGAnization or boundary change is desirable and is not likely to conflict with any contemplated reORGAnization under the provisions of ORS 330.505 to 330.780. A school district created by or affected by a consolidation, reORGAnization or boundary change made pursuant to the authority of this section does not thereby become an administrative school district."

Under chapter 423, Oregon Laws 1959, the school district reORGAnization law was amended in several particulars, but the above quoted section thereof was not amended. However, there was added the following provision:

"Notwithstanding any provision of ORS 330.505 to 330.780, before July 1, 1962, changes in the boundaries of administrative school districts may be made in the manner prescribed in ORS 329.730 when such changes do not conflict with the reORGAnization plan of the county or counties concerned." Chapter 423, § 15, Oregon Laws 1959.

ORS 330.530, relating to preparation of comprehensive plans for reORGAnization by county committees, provides in part:

"* * * 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 and shall be included in the comprehensive reORGAnization plan of each of the counties concerned." (Emphasis supplied)

Under ORS 330.640, in all elections under the School District ReORGAnization Act, the returns of the election are required to be canvassed by both county committees, jointly, where the election involves more than one county.

As noticed from ORS 330.645, supra, where a boundary change is proposed to be made under procedures existing prior to August 20, 1957, the county committee "for the county in which the affected districts lie" must enter a finding that such boundary change is desirable and is not likely to conflict with any contemplated reORGAnization plans. Applying this statute to the facts presented, it would appear that the concurrence of both county committees should be received for the reason that Baker School District No. 5J is a "joint district" with territory in both counties. If the Baker School District were not a joint district. then the concurrence of the Union County Committee would not be required inasmuch as the territory to be annexed is solely within Baker County. However, since a joint district is involved and its boundaries will be "affected" by the proposed addition of territory, the concurrence of both county committees must be received and a finding entered to the effect that the proposed annexation and change of boundaries will not conflict with any contemplated reORGAnization plans of the respective counties. Compare opinion No. 4361, dated February 20, 1959.

Your second and third questions are as follows:

"2. If this concurrence of the Union and Baker County Committees is required because of the location of either or both districts, what are the exact steps in order to permit annexation?

"3. If this concurrence is not required are the steps for annexation any different than they would be for an annexation of any other district within the county?"

As indicated in response to your first question, the initial step in the contemplated procedure would be to secure the consent of the respective county committees on reORGAnization, who should respectively enter a finding that the proposed boundary change will not conflict with plans for reORGAnization.

The next step to be taken would be the preparation and the presentation to the appropriate district boundary board of a proposed petition for annexation. The procedure for annexation of school districts is set forth in ORS 329.730, and subsection (2) thereof provides:

"When the boundaries of any school district lying in two or more counties are proposed to be changed, the petition shall first be acted upon by the district boundary board of the county in which lies the greater part of the district proposed to be changed; but any change of the boundaries in the other county must be concurred in by the district boundary board of that county."

"* * * It is our opinion that the said phrase refers to the school district that will lose territory by reason of the annexation and change of boundaries, * * *"

Accordingly, since the Muddy Creek School District will "lose territory" by reason of the change of boundaries and is situated entirely within Baker County, the petition for the proposed annexation should be presented to and first acted upon by the district boundary board of that county, but any such change in boundaries must be concurred in by the district boundary board of Union County. In connection with the proposed annexation, attention is further directed to subsection (7) of ORS 329.730, which provides that the district boundary board has no power to annex a school district having 10 or more children of school age to one or more adjoining districts without submitting the question to the voters of such districts in the manner provided by ORS 330.110 for consolidating school districts. The latter section provides that the petition for consolidation "shall be presented to the district boundary board of the county in which the district having the largest school census is situated." Assuming that the latter section is applicable to your inquiry and that the Muddy Creek School District has more than 10 children of school age, the petition for consolidation of the districts would be presented to the district boundary board of Baker County.

Finally, in the event the foregoing procedures are followed, consideration should be given to the result of such annexation and to the further fact that the Muddy Creek School District is a part of a union high school district. ORS 335.290, a part of the union high school law, reads:

"The creation of a regular school district

out of territory included in a union high school district, or the changing of boundaries of any regular school district included in a union high school district, shall not dissolve, change the boundaries of, or affect the union high school district." (Emphasis supplied)

The boundaries of a union high school district remain the same regardless of any change of boundaries of regular school districts or parts of districts comprising such union high school district: Opinions of the Attorney General, 1924-1926, p. 446; 1936-1938, p. 463; 1946-1948, p. 521. Thus, the territory comprising the Muddy Creek School District would still be liable for taxation to the union high school district, even though annexed to another school district for high school purposes, unless such territory is removed from the union high school district. Compare opinion of the Attorney General, No. 4457, dated August 18, 1959.

We therefore call attention to the provisions of ORS 335.338, which provides:

"(1) Notwithstanding the provisions of ORS 335.290 to 335.300, upon petition of a district school board of a common school district which maintains a district high school and after public hearing on the petition, the district boundary board may change the boundaries of a union high school district so that no part of the petitioning common school district is included in a union high school district."

If the Muddy Creek School District is annexed to, or consolidated with, the Baker School District, then it would be a part of a "common school district which maintains a district high school," and petition could be made to the district boundary board to change the boundaries of the union high school district so that no part of the petitioning common school district is included in a union high school district. See also Opinions of the Attorney General, 1954-1956, p. 221.