Oregon Advisory Opinions February 21, 1963: OAG 63-24 (February 21, 1963)
Collection: Oregon Attorney General Opinions
Docket: OAG 63-24
Date: Feb. 21, 1963
Advisory Opinion Text
OAG 63-24.
Superintendent of Public Instruction
Inquiry has been made by the County School Superintendent of Clackamas County concerning the duties of the rural school board with respect to certain petitions for school district reORGAnization on file with that office. It appears that the following petitions have been received: February 19, 1962, petitions from School Districts No. 28, 64 and 103, all component parts of Union High School No. 5, requesting creation of an administrative district comprising the elementary school districts; April 19, 1962, petition by School District No. 1, also a part of Union High School No. 5, to form an administrative school district of School District No. 1; April 24, 1962, petition by the union high school district requesting unification of the entire union high school district; January 15, 1963, a petition requesting the board to make plans to unify the entire Union High School District No. 5. The question presented was:
"In light of the above facts, is the Rural School District Board obligated to act upon the latter request or should they proceed with the plans of the former Committee?"
It further appears from the letter that while preliminary plans were drawn for the two petitions first above mentioned, the plans were temporarily halted when it was concluded that an equitable division of the assets of the union high school district could not be made without an appraisal which appraisal was finally completed about two days ago. It further appears that prior to termination date for the county committee for reORGAnization on July 1, 1962, a comprehensive plan for the entire county was mailed to the State Board of Education which included tentative plans for the formation of the two administrative school districts first above mentioned.
To answer your inquiries it is necessary first to analyze the "petitions" for reORGAnization. While the county committee for reORGAnization was in operation (prior to July 1, 1962) it was the
duty of the county committee to prepare plans for reORGAnization on its own initiative, irrespective of any requests or so-called petitions from interested school districts or otherwise. See ORS 330.530, 330.550, 330.580. Under these statutes a duty was imposed upon the committee to prepare a comprehensive plan for reORGAnization of the school districts within the county, or the committee was permitted under ORS 330.580 to submit partial plans for reORGAnization without awaiting the completion of a comprehensive plan. Thus the Clackamas County Committee had evidently prepared "preliminary plans" for two administrative school districts but it had not conducted a hearing or hearings on the plan as required by the statute nor had the State Board of Education conducted the hearing required by ORS 330.560, nor had the plan or plans been approved by the State Board of Education under ORS 330.565, prior to the termination of the duties of the committee on July 1, 1962.
At this point it may be noted that while the county committee, either shortly before or after July 1, 1962, submitted a "comprehensive plan" for reORGAnization of the county to the State Board of Education, it is my understanding since no formal hearing or elections were held upon the same it simply constituted an informal recommendation as to further reORGAnization in that county.
Thus this was the status of school district reORGAnization when ORS 330.630 became operative, which provided in part that:
"(1) When the entire county has been reORGAnized in the manner and using the procedure provided in ORS 330.505 to 330.595 * * * or on July 1, 1962, whichever is the earlier, the committee shall be dissolved and the functions of the committee shall devolve upon the rural school board."
The further provisions of this section with respect to further reORGAnization where an administrative school district is not affected, are as follows:
"(2) After the committee has been dissolved, if the rural school board considers further reORGAnization necessary to improve educational opportunities for the pupils in the county, or upon petition signed by not less than 10 legal school voters residing within territory to be affected by a proposed change, the rural school board shall submit proposed changes to the State Board of Education. If the changes submitted by the rural school board are approved by the State Board of Education and the changes do not affect in any way an administrative school district, the proposal shall be submitted to the legal school voters of the districts affected in the same manner as is provided in ORS 330.585 to 330.590 so far as applicable, and if approved the change shall become effective on July 1 following the date of the election. * * *"
The section above quoted clearly indicates that there are two methods by which further reORGAnization may be initiated, namely, (1) by the rural school board on its own initiative if it "considers further reORGAnization necessary," or (2) upon petition signed by not less than 10 legal school voters residing within territory to be affected by a proposed change. Also, under subsection (1) of ORS 330.630, after July 1, 1962, the "functions of the committee" shall devolve upon the rural school board.
In prior opinions of this office the Attorney General has discussed the procedure to be followed with respect to conflicting petitions for boundary change submitted to a district boundary board. See Opinions of the Attorney General, 1956-1958, p. 18; 1948-1950, p. 155. In Will et al. v. District Boundary Board of Yamhill County, (1932) 141 Or. 54, at p. 63, 16 P. (2d) 24, the court in discussing the jurisdiction of a district boundary board to entertain conflicting petitions indicated that the board should adopt the maxim of "first in time, superior in right," and that
"* * * When a petition or petitions complying with the requirements of the statutes are filed with the district boundary board, the board should not entertain any conflicting petitions until the first filed is finally disposed of either by being dismissed by the board for a legal reason or by an adverse vote at an election called and held according to law."
If the initiation of school district reORGAnization depended solely upon the filing of "petitions" by interested districts or taxpayers, then the principle above stated should be strictly applied; that is to say, the board should consider the first petition and not act upon any conflicting petitions until the petition first in line is disposed of.
However, as we have pointed out, under ORS 330.630 further school district reORGAnization may be initiated by the committee itself or upon petition of legal school voters. Therefore, where preliminary plans were submitted by the prior county committee, but no hearings held thereon, it would appear to be discretionary with the rural school board to continue with the preliminary plans for reORGAnization of the two proposed administrative school districts, in which event the petitions filed subsequent thereto and conflicting therewith would be held in abeyance until completion of the hearings and elections re
quired by the School District ReORGAnization Act.
On the other hand, if the rural school board does not consider the proposed further reORGAnization necessary, it may then take cognizance of the January 15, 1963, petition for unification of the union high school district.
Accordingly, in response to the inquiry, it is our opinion that the rural school district board is not obligated to act upon the petition of January 15, 1963, if the board has determined that it considers further reORGAnization necessary and desires to proceed with the preliminary plans for reORGAnization of that county.