Oregon Advisory Opinions September 18, 1963: OAG 63-124 (September 18, 1963)

OAG 63-124.

You have requested our opinion on a problem submitted to you from the Intermediate District School Board of Wasco County whose letter to you reads in part as follows:

"School Districts No. 9 and 12, Wasco County, Oregon, are duly authorized and existing school districts adjoining each other in The Dalles and Chenowith area. At approximately 9:00 A.M. on August 5, 1963, seventeen legal school voters of School District No. 9 filed with the Rural School Board, constituting the District Boundary Board for Wasco County, a request that the Wasco County Rural School Board change the status of District No. 9 from a consolidated district to that of an administrative district. * * *

"On the same day but later in the day, a large number of residents of both school Districts 9 and 12 filed petitions with the District Boundary Board of Wasco County, requesting that the District Boundary Board consolidate Districts No. 9 and 12 to form one school district. * * *

"Thereafter, the District Boundary Board, * * * met and set a date for the hearing on the petition to consolidate and commenced the publication of notice of the same. The hearing has been set for the 19th day of September, 1963. It is contended by interested persons that, so long as the petition to form an administrative district is pending at the time of the filing of the petition to consolidate, the District Boundary Board cannot proceed with the hearing and determination of the petition to consolidate."

Your first question is:

"(1) In view of the state of facts above set forth, may the District Boundary Board proceed with the hearing and dispose of the petition to consolidate while the petition to change the status of District 9 to an administrative district is pending and undisposed of?"

In order to resolve your inquiry consideration should be given to the status of the respective petitions filed with the district boundary board which will be resolved by the provisions of chapter 282, Oregon Laws 1963. This Act substantially amended the school district reORGAnization law as contained in ORS chapter 330 and further substantially amended and enacted new provisions relating to the change of boundaries of school districts by the district boundary board.

In an opinion of this office dated February 21, 1963, bearing No. 5593, this office considered a question involving conflicting petitions for change of school boundaries which were filed by the rural school board and proposed preliminary plans of reORGAnization that had been initiated by the county committee for reORGAnization which involved an interpretation of ORS 330.630 relating to further school district reORGAnization (which section is now repealed by § 16, chapter 282, Oregon Laws 1963). In the opinion reference is made to Will et al. v. District Boundary Board of Yamhill County, (1932) 141 Or. 54, 63, 16 P. (2d) 24, where 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."

After referring to the said case we said in the opinion:

"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 required 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 * * * 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 * * * if the board has determined that it considers further reORGAnization necessary and desires to proceed with the preliminary plans for reORGAnization of that county."

As above noted, ORS 330.630, relating to further school district reORGAnization upon petition, has now been repealed, and there is no statute which expressly permits the filing of "petitions" for reORGAnization of school districts into administrative school districts. Further reORGAnization is now dependent solely upon the discretion of the rural school board, which is now known as the intermediate school board: See chapter 544, Oregon Laws 1963. ORS 330.530 relating to school district reORGAnization as amended by § 4, chapter 282, Oregon Laws 1963, reads in part as follows:

"(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." (Emphasis supplied)

"(1) When the committee has prepared a reORGAnization plan, including maps and charts, the committee shall fix the dates and places for hearings on the reORGAnization plan. The county superintendent shall give notice of the hearings by publication as provided in ORS 330.635."

"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. * * *"

Without further quoting the provisions of the school district reORGAnization law as amended, the foregoing is sufficient to show that school district reORGAnization is initiated solely at the discretion of the committee which is now known as the intermediate school board. There is no statutory provision for filing a "petition" for changing the status of a school district into an administrative school district. Such a petition, if filed with the intermediate school board, is therefore not binding upon it and does not require the board to take official cognizance of it or to proceed with a suggested plan of school district reORGAnization.

The intermediate school board now has the function of not only acting as the committee for further school district reORGAnization, but also has the powers and duties of the district boundary board in matters of change of boundaries, merger or consolidation of school districts. The latter authority is contained primarily in § 13, chapter 282, Oregon Laws 1963, which reads in part as follows:

"(1) The district boundary board on its own motion or on petition of three persons residing or owning or occupying real property within territory embraced within a proposed merger or consolidation, annexation or boundary change may alter the boundaries of districts, annex territory to districts or merge or consolidate smaller districts into larger districts in the manner hereinafter provided if it finds:

"(a) The proposed change will have no substantial adverse effect upon the ability of the districts affected to provide the educational program required by law.

"(b) The proposed change will result in improvement of the educational facilities available to the children in the area affected by the proposed change or will result in substantial operating economies in the districts affected.

"(c) The proposed change is not made solely for tax advantages to the property owners in the district or area affected by the proposed change.

"(d) The proposed change is not likely to adversely affect any contemplated reORGAnization under the provisions of ORS 330.505 to 330.595 and 330.610 to 330.780." (Emphasis supplied)

"Before the proposed change is made the district boundary board shall cause notice of the proposed change and the session of the board when the same will be considered to be published in at least two issues of a newspaper designated by it and having circulation in the school districts or areas affected by the proposed change. * * *"

As above noted, subsection (1) of § 13, chapter 282, Oregon Laws 1963, expressly permits the filing of a petition by persons owning or occupying real property within territory embraced within a proposed merger or consolidation.

Accordingly, in response to your first inquiry, it is our opinion that the intermediate school board, acting as a district boundary board, had authority to take cognizance of the petition for consolidation filed pursuant to § 13, chapter 282, Oregon Laws 1963, and to cause notice of the proposed change to be published as required by the said Act. The so-called "petition" to change the status of District No. 9 to an administrative district has no legal standing and cannot be considered a conflicting petition as to inhibit the board from taking cognizance of the consolidation petition. Specifically, therefore, we answer your first question in the affirmative.

Preliminary to your second question, reference is made to § 13 (1)(d), chapter 282, Oregon Laws 1963, which authorizes the district boundary board to alter boundaries of districts or consolidate districts if it "finds" among other things, that "the proposed change is not likely to adversely affect any contemplated reORGAnization under the provisions of ORS 330.505 to 330.595 and 330.610 to 330.780."

"(2) Can it be said as a matter of law under the statute above quoted, that the proposed consolidation will adversely affect the contemplated reORGAnization requested to change District No. 9 to an administrative District?"

In opinion of the Attorney General No. 5455, dated June 28, 1962, it was held that a district boundary board has discretionary power to grant a boundary change in school districts under ORS 329.730, which statute contains substantially the same provisions as contained in subsection (1) of § 13, chapter 282, Oregon Laws 1963. In that opinion the question was asked as to what is a "substantial adverse effect under this statute" and the answer was:

"Neither this office nor a court can say under the facts submitted whether or not the petition under consideration will have a 'substantial adverse effect' upon the districts affected, that being a matter to be resolved by the district boundary board, and the exercise of such discretionary power will not be interfered with unless limitations discussed above are exceeded."

We must necessarily answer your second question in the same vein, that is to say, that it is incumbent upon the district boundary board to find that the proposed consolidation will not adversely affect any contemplated reORGAnization. However, we cannot say, nor do we know, what contemplated further reORGAnization has been initiated by the intermediate school board.

Your final question relates to the provisions of subsection (3) of § 13, chapter 282, supra, and also subsection (4) thereof which relates to the time of filing a remonstrance and you ask

"* * * whether or not the 20 days for the filing of remonstrances commences to run from the time that the boundary board met and set the date, or is it 20 days after the 19th day of September, 1963, which is the date set for the hearing?"

In our opinion the latter date is correct. Subsection (4) reads in part that

"If a remonstrance * * * is filed with the district boundary board within 20 days after the date set to consider the proposed change, the district boundary board * * * shall submit the question of the proposed change to the voters of the affected district or area * * *."

"* * * If no remonstrance is submitted requiring an election as provided in subsection (4) of this section, the district boundary board * * * shall declare that the change shall become effective at the end of the fiscal year."

In our opinion the term "date set to consider the proposed change" means the hearing date that is set in the notice of publication.