Oregon Advisory Opinions September 21, 1970: OAG 70-76 (September 21, 1970)

Oregon Attorney General Opinions

1970.

OAG 70-76.

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DISCUSSION

This question requires this office to reconsider the position taken in a previous opinion, 29 Op. Att'y Gen. 399 (1960), in which it was concluded that the statutory provisions for giving notice of a school election were the exclusive means by which a district could bring to the attention of the voters the issue or issues to be voted upon at the election. This conclusion rested largely upon an opinion by the Attorney General of the State of Washington, and rejected sound case authority to the contrary. We overrule our prior opinion.

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ORS 331.010(1) provides:

". . . notice of school elections, school district organization and merger, school district budgets and school district purchasing shall be given only as provided in this section." (emphasis supplied)

Succeeding subsections provide for publishing and posting of formal notices of an impending election. Relying on the word "only" and on Crawford v. School District No. 7 , 68 Or. 388, 137 P. 217 (1913) and Lovell v. School District No. 13 , 172 Or. 500, 143 P.2d 236 (1943), which held that school boards have no powers except those expressly granted, or necessarily implied from powers expressly granted, the previous opinion held that the general powers and duties of school boards set forth in ORS 332.050(4) and (6) did not authorize expenditure of public moneys to inform the public of issues involved in elections.

The opinion also relied upon State ex rel. Port of Seattle v. Superior Court , 93 Wash. 267, 160 P. 755 (1916); Elsenau v. City of Chicago , 334 Ill. 78, 165 NE 129 (1929); and Mines v. Del Valle , 201 Cal. 273, 257 P. 530 (1927). In each of these cases the court held that expenditure of funds in a campaign to influence an election result, and not merely to furnish factual information, was improper. These cases are not in point.

The general powers and duties of district school boards in Oregon include the following:

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ORS 332.072. ". . . [T]he district school board is authorized to transact all business coming within the jurisdiction of the district . . . Pursuant to law, district school boards have control of the district schools and are responsible for educating children residing in the district."

ORS 332.075. "Any district school board may:

(1) Subject to applicable provisions of law, establish and maintain kindergartens, elementary schools, high schools ..."

ORS 331.105(1). "The general duties of district school boards are:

. . .

(b) To perform such other duties as the wants of the district may from time to time demand."

ORS 332.155. "A district school board:

(1) May furnish, equip, repair, lease, purchase and build schoolhouses (etc.) . . . and lands for all school purposes.

. . .

(4) Shall furnish their schools with supplies, equipment, apparatus and services essential to meeting the requirements of a standard school and may furnish such other supplies, equipment, apparatus and services as the board considers advisable."

Without any more specific authority than that set forth above, school boards have traditionally and without objection disseminated information to parents of school children and to the public concerning their educational objectives and needs. This has often been for the purpose of determining the public attitude to or desire for particular

programs. A case in point is the substantial publicity given by the Salem school district to its "family life" program, to inform the public of the nature of the program and obtain the public's reaction to it, to determine whether it should be continued, modified, or discontinued.

In this and other matters a school district is fulfilling its duties "as the wants of the district may from time to time demand," by endeavoring to achieve the fullest possible exchange of information between the public and itself. This will permit the school board to make better informed decisions and thus better fulfill its responsibility for educating children. The fact that an election is to be held on a school matter does not cut off this duty, but in our opinion it continues in full measure.

The word "only" in ORS 331.010(1) does not prohibit any dissemination of information concerning the subject of an election other than the formal notice required. Instead the statute states that this is the only way in which the notice is to be given if the election is to be valid. It prohibits use of alternative methods of giving notice to the voters; it does not prohibit the furnishing of additional information concerning the matters at issue so that the voters will be better able to cast informed votes. To the contrary, the authority, if not the duty, to furnish information to the public concerning school affairs seems clearly implied as

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necessary to permit school boards to carry out the duties specifically set forth in the statutes.

Similar statutes were construed by the court in Citizens to Protect Public Funds v. Board of Education , 13 N.J. 172, 98 A.2d 673 (1953). Plaintiffs attacked the authority of a school district to publish an informational booklet and disseminate information through broadcast media before an election concerning the district's building program. The court first noted that the school district was required to provide suitable school facilities and accommodations for children residing in the district, and that there was no express statutory provision authorizing the expenditure of public funds for the questioned purposes. It was found, however, that such authority impliedly existed because of the statutory power of the district to provide school houses:

"The power so implicit plainly embraces the making of reasonable expenditures for the purpose of giving voters relevant facts to aid them in reaching an informed judgment when voting upon the proposal. . . . [T]he complexities of to-day's problems make more difficult the task of every citizen in reaching an intelligent judgment upon the accommodation of endurable financial cost with the acknowledged need for adequate education. The need for full disclosure of all relevant facts is obvious, and the board of education is well qualified to supply the facts. But a fair presentation of the facts will necessarily include all consequences, good and bad, of the proposal, not only the anticipated improvement in educational opportunities, but also the increased tax rate and such other less

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desirable consequences as may be foreseen. If the presentation is fair in that sense, the power to make reasonable expenditure for the purpose may fairly be implied as within the purview of the power, indeed duty, of the board of education to formulate the construction program in the first instance." 98 A.2d at 676-677.

The court found, however, that the requirement of fairness had been violated by the exhortation of the voters to "Vote Yes," saying:

"The public funds entrusted to the board belong equally to the proponents and opponents of the proposition, and the use of the funds to finance not the presentation of facts merely but also arguments to persuade the voters that only one side has merit, gives the dissenters just cause for complaint." 98 A.2d at 677.

Similarly, in Brennan v. Black , 12 Del. Ch. 56, 104 A.2d 777 (1954) the court held the use of public funds for a circular containing information about a school bond election to be valid. The court said:

"A Board of Education charged with the duty of managing the public schools in its districts, maintaining them in good condition, and providing for necessary improvement and expansion of the school system, is not prevented from using reasonable publicity to bring the issues before the voters." 104 A.2d at 790.

The court, however, cautioned:

"The temptation to any public official to overemphasize the importance and the urgency of a project which he sincerely believes is necessary is understandable; but overstatement and emotional appeal in circulars and other similar

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matter prepared and distributed at public expense are to be avoided." Ibid.
We concur in the reasoning of these cases.

It is concluded that a school district may use district funds to inform the voters of the district of facts pertinent to a school budget election, but such information must be fairly presented and cannot be used to advocate that a voter vote in a particular way at the election.