Oregon Advisory Opinions June 28, 1976: OAG 76-71 (June 28, 1976)

OAG 76-71.

As amended by Oregon Laws 1975, ch 477, § 10, ORS 334.320 provides:

"The intermediate education district board shall call a special school election in the intermediate education district whenever the sum of the levies as determined in ORS 334.250 to 334.290 or 334.350 to 334.400 exceeds the limitations imposed by section 11, Article XI, Oregon Constitution if the election is agreed upon by resolution of two-thirds of the common and union high school districts described in paragraph (a) of subsection(2) of ORS 334.175 and is submitted on or before April 1. The board may call a second election if a resolution is agreed upon by such common and union high school districts."(fn1) (Emphasis supplied.)

ORS 334.175(2)(a) provides:

"The extent and nature of [intermediate education district] facilities and services must be:

"(a) Agreed upon on or before March 1 by resolution of two-thirds of the common and union high school districts which are a part of the intermediate education district or districts and which have at least a majority of the pupils included in the average daily membership of the intermediate education district or districts, as determined by the reports of such school districts for the preceding year, enrolled in the schools of the districts;"

The language of ORS 334.320, as amended, establishes unmistakable limitations upon the power of any intermediate education district [IED] board to call a special school election.

Before any IED board may call such a special election, it must obtain approval, by resolution, from at least two-thirds of the common and union high school districts which have approved of the facilities and services of the IED in accordance with ORS 334.175(2)(a). And, those schools which compose the required two-thirds must represent at least a majority of the pupils in average daily membership of the IED during the preceding year. The third restriction is, of course, that the sum of the described levies exceed the tax base of the particular IED.

Unless each of the above conditions is present, an IED board has no authority to call a special school election. On the other hand, we must conclude that if each condition is present, the IED board must call a special election. See 37 Op Atty Gen 401 (1975).

Likewise, an IED board may not increase its own budget by holding an equalization levy without the requisite school approvals. Inasmuch as such budget increases could be used to accomplish the same ends as equalization funds from special school elections, the requirements in ORS 334.320 would be nullified thereby. A governmental unit may not indirectly accomplish that which the law prohibits from being accomplished directly. Furthermore, we can find no authorization for IED boards to include equalization in its own budget prepared pursuant to ORS 334.420.

The issue posed by the third question is very similar to the principal issue currently before the Oregon Supreme Court in Shauna Olsen et al v. State of Oregon, et al. That case

challenges the constitutionality of the failure of Oregon statutes to provide equal financing per pupil in schools regardless of variations in assessed value per pupil among school districts. The same or very similar legal theories would apply to the third question, and, therefore, it would be inappropriate for us to answer at this time.

1 Oregon Constitution, Art. XI, § 11, prohibits any taxing unit from raising tax revenue in any one year in an amount greater than the tax base of the unit. Section 11(2) provides that a majority of the legal voters may vote to approve a new tax base for the following fiscal year.