Wyoming Advisory Opinions November 14, 1983: AGO 1983-017 (November 14, 1983)

AGO 1983-017.

FACTUAL BACKGROUND

In 1971, the unification of Sublette County School Districts under the Wyoming School District Organization Law of 1969 (Sections 21-5-101 through 21-5-137, W.S. 1977) was completed. Several changes since that time have modified the original 1971 plan of reorganization. Although there have been seven Orders of the State Committee on School District Organization (the State Committee) affecting Sublette County, only the November 19, 1971, and January 6, 1977, orders are relevant to this question. The other orders were: January 28, 1972 (assessed valuation equalized between Sublette County School Districts Nos. 1 and 9); March 2, 1973 (the same); July 26, 1973 (the same); February 15, 1974 (the same); and May 18, 1976 (the LaBarge area of Lincoln County was transferred into Sublette County School District No. 9 (Big Piney)).

The November 19, 1971, Decision and Order of the State Committee was a final and,unappealed administrative decision reorganizing Sublette into two school districts: No. 1 (Pine-dale) and No. 9 (Big Piney). No. 1 was created with seven trustees from two trustee residence areas: Area "B" had one trustee from the Bondurant area, and Area "A" had six trustees running at large from the rest of the district.

At its May 18, 1976, meeting, the State Committee approved a plan submitted by Sublette County to change the Pinedale School District's two trustee residence areas into six trustee residence areas. The plan for this change had been submitted by the Sublette County Planning Committee (consisting of School District Nos. l's and 9's Boards of Trustees). It was supported by petitions and had been adopted without any opposition at a local public hearing. No vote was held in Sublette County on the proposed change of trustee residence areas. Because of problems in changing over to the new trustee residence areas with a pending school board election, entry of the State Committee approval order was delayed.

On January 6, 1977, the State Committee entered an order entitled "Amendments to Decision and Order Reorganizing Sublette County, As Amended." In this Order, the State Committee incorporated its May 18, 1976, Order transferring LaBarge from Lincoln County School District No. 1 to Sublette County District No. 9. It further purported to establish six new trustee residence areas for Sublette County School District No. 1:

One Trustee - Area "A" (Bondurant, but not precisely the same boundaries as the prior Bondurant area "B").

One Trustee - Area "B" (Daniel-Bronx) One Trustee - Area "C" (Cora-Kendall)

One Trustee - Area "D" (Pinedale)

One Trustee - Area "E" (Boulder)

Two Trustees - Area "F" (Whole district, at Large)

No other State Committee order affecting Sublette County School District reorganization since 1977 has been found.

LEGAL BACKGROUND

Chapters 5 and 6 of the Education Code of 1969 control school district organization in Wyoming. Chapter 6, the District Boundary Board Law, dates from 1913. Under this chapter, reorganization proposals to change district boundaries are approved by the District Boundary Board and then the State Committee. Since abolishment of the Office of County Superintendent of Schools, the District Boundary Board contains no school officials as voting members. Section 21-6-101, W.S. 1977. Chapter 5 is the Wyoming School District Organization Law of1969. A major purpose of this separate school district reorganizational law was to force unification. Section 21-5-102, W.S. 1977.

School district reorganization is a particularly complex topic, especially so when trying to understand the meaning and intent of either Chapter 5 or 6 of the Education Code, let alone how the two chapters work together. The subject is one of the most political dealt with by the Legislature. In fact, a motion to delete the present Chapter 5 on reorganization failed the 1969 Wyoming Senate on a 15-15 tie vote. Painter and Johnson, The Wyoming Education Code of 1969, 5 Land & Water Law Review 531, 532 (1970). In general, however, it can be said there are four categories of school reorganization in Wyoming.

First, there was unification of the State's numerous school districts of different types into unified school districts offering grades K-12. To accomplish this, Chapter 5 contained many specific requirements and deadlines, and included certain authority for the State Committee to force unification efforts. Except for Fremont County, this first stage has been completed for several years. As a part of this unification, trustee residence areas were to be established within school districts, considering local school population, general population, and ecology. Section 21-5-105(a)(iv), W.S. 1977; and see, Section 21-5-109, 21-5-114(a)(iv), and 21-5-121, W.S. 1977. This first stage was completed in Sublette Countyby the State Committee's November 19, 1971, Order dividing Sublette County into two school districts, and creating two trustee residence areas for the Pinedale District.

The second category is limited to unification of the Indian elementary districts. The Legislature has struggled to achieve unification on the Wind River Indian Reservation, which contains three non-unified Indian elementary public school districts in Fremont County. The Legislature enacted laws that treat unification of these districts in a special way, including mention of trustee residence areas in Section 21-5-132, W.S. 1977. See, Sections 21-5-132 through 21-5-137, W.S. 1977.

The third category is reorganization after unification. Both Chapters 5 and 6 can apply to this reorganization. The State Committee has no authority to require any reorganization. See, Geraud v. Schrader, Wyo., 531 P.2d 872, cert. denied, 423 U.S. 904 (1975); and Section 21-5-109, W.S. 1977. None of the statutory deadlines of Chapter 5 applies to this category. Included in this category are splitting of a county-wide school district into two school districts (such as occurred in Lincoln County), major shifts in boundaries between existing school districts within a county (often with equalization of the assessed valuation as a principle, but not exclusive reason for the change), and changes to trustee residence areas of a school district. It is this reorganization-after-unification category which was involved in the 1977 purported Order of the StateCommittee creating additional trustee residence areas in the Pinedale School District. Only one statute, Section 21-5-122, W.S. 1977, speaks to the change of trustee residence areas. That statute requires a two-thirds majority vote as a condition precedent to a change in the trustee residence areas of a district.

Constituting the fourth category, if it is a valid use of the District Boundary Board Law, are minor boundary changes between school districts within a county, primarily sought for the convenience of one or a few families who wish their children to attend and their property to be taxed in an adjoining school district.

DISCUSSION

Answering this question requires the resolution of several subquestions.

Was the 1971 Order a final unification decision? If not, the State Committee could have modified the trustee residence areas in 1976 without the electorate approval required by Section 21-5-122, W.S. 1977. If so, the failure of parties-in-interest to appeal the 1971 Order prevents its collateral attack now.

On its face, the November 19, 1971, Decision and Order satisfied all requirements to be a final administrative decision under present and prior Wyoming administrative law. Sec tion 16-3-110, W.S. 1977. It included findings of fact and conclusions of law separately stated. A concise and explicitstatement of the facts reporting the findings was given. Pan American Petroleum Corp. ,v. Wyoming Oil & Gas Conservation Commission, Wyo., 446 P.2d 550 (1968); Powell v. Board of Trustees, Wyo., 550 P.2d 1112 (1976). If firmly divided Sublette County into two unified school districts. See Wyoming Bancorporation v. Bonham, Wyo., 527 P.2d 432 (1974). Therefore, it is a final administrative unification decision.

Was a vote of the people required by State law to change trustee residence areas after the 1971 Order? It could be argued, and apparently was assumed by the State Committee at the time, Section 21-5-122, W.S. 1977 (and its identical 1969-1977 Section 21.1-126 predecessor) did not establish a prerequisite to change trustee residence areas; rather, it created another option to change trustee residence areas. Under this view, it is necessary to read the statute as if it read:

The boundaries of the trustee residence areas may also be change by a two-thirds majority vote of qualified electors actually voting in the unified school district . . . . [Underlinedword inserted].

Section 21-5-122, W.S. 1977.

There are several problems with this view. Although the Legislature could have inserted the word "also," it did not do so. If indeed the Legislature intended to create another method to change trustee residence areas, statutory language elsewhere should refer to changes in trustee residence areas. However, this is the only statute that refers to trustee residence area changes. Finally, this interpretation is contrary to the view expressed by two authoritative commentators on the Wyoming Education Code of 1969: Donald Painter, a Special Assistant Attorney General, and Robert Johnson, then Chairman of the Education Subcommittee which prepared the Wyoming Education Code of 1969. In their article, they State that, "As in the old code, the boundaries of trustee residence areas can be changed only by a two-thirds majority vote of qualified electors within the school district after preliminary approval for such a change has been received from the Board of the unified district," citing Section 21.1-126, W.S. 1969. Painter and Johnson, The Wyoming Education Code of 1969, 5 Land & Water Law Review 531, 547 (1970).

Section 21-5-122, W.S. 1977, actually states:

The boundaries of the trustee residence areas may be changed by a two-thirds majority vote of qualified electors actually voting in the unified school district . . . .

A reasonable construction of the face of the statute is that the Legislature provided for the change of trustee residence areas outside a major reorganization of school districts, but only if approved by the affected unified school district board and two-thirds majority vote of qualified electors within the school district. Thus, a vote of the people was required by the electors of Sublette School District No. 1 before the State Committee had jurisdiction to approve a change to trustee residence areas of the district. No vote was held.

If the required popular vote was not held, what is the status of the 1976 Order and the validity of the trustee residence areas purportedly created by it? The State Committee lacks authority to initiate or approve school district reorganization proposals that do not comply with statutory requirements. Yates v. State Committee on School District Reorganization, Wyo., 598 P.2d 11 (1979); Geraud v. Schrader, Wyo., 531 P.2d 872, cert. denied, 423 U.S. 904 (1975); and see, Johnson v. Schrader, Wyo., 502 P.2d 371 (1972), modified on rehearing, 507 P.2d 814 (1973); Lund v. Schrader, Wyo., 492 P.2d 202 (1971). In Lund, supra, at 208, the Wyoming Supreme Court stated that the State Committee lacked jurisdiction or power to make a unification plan for Johnson County when statutory requirements had not been satisfied.

The State Committee's 1977 Order purportedly changing the Pinedale School District trustee residence areas was null and void. The State Committee lacked jurisdiction to change the Pinedale trustee residence areas without compliance with the electorate approval requirement of Section 21-5-122, W.S. 1977. Since the popular vote requirement of the predecessor of Section 21-5-122, W.S. 1977, had not been satisfied for the proposal presented to the State Committee in May of 1976, the State Committee was without power to change the trustee residence areas of the Pinedale School District.

It follows that, if they are not elected from valid trustee residence areas, the present members of the Board of Trustees of Sublette County School District No. 1 are not de jure (by law) validly-elected school board members. That does not, however, mean that the actions they have taken in good faith reliance upon the validity of their election are invalid. As .de facto (those operating under color of law) school district trustees, the present board members' actions are valid in the past and continue valid until de jure board members assume office.

Faced with a similar situation in 1971, the Wyoming Supreme Court held that:

The State Committee's approval of thedistrict board plan was proper in all respects. It at least afforded the necessary color of law to make the unified district a de facto district and to make the trustees thereof de facto officers.

Board of Trustees of School District No. 3 in Natrona County v. District Boundary Board of Natrona County, (2nd case), Wyo., 489 P.2d 1393, 1396 (1971).

As noted in that opinion, even though there are legal problems which prevent the de facto trustees from continuing past the next election, "it is necessary for them to continue as such until they become de jure officers or until de jure trustees replace them." Id.; accord, May v. City of Laramie, 58 Wyo. 240, 131 P.2d 300 (1942).

What must be done to obtain a valid de jure school board for Sublette County School District No. 1? The Wyoming Legislature has provided for the replacement of school board trustees who are not residents of trustee residence areas. For instance, Section 21-5-121(b), W.S. 1977, provides that trustees who become nonresidents of the trustee residence area they were elected to represent are deemed to have vacated office, and any vacancies are to be filled by a majority vote of the remaining members by appointment of a resident of the proper trustee residence area, to hold office until the next annual election, at which time a proper trustee will be elected to fill the remainder of the unexpired term.

However in this case, there are no de jure members of the Sublette County School District No. 1 Board of Trustees to appoint replacements until the next general election. Although as a practical matter, the present office holders may come from the valid trustee residence areas "A" and "B" of the 1971 Order, none of the trustee residence areas is legally the same between the 1971 Order and the purported 1976 Order. The boundaries of the Bondurant area were slightly different, thus legally the present Bondurant area trustee does not represent the same territory as the trustee would have under the 1971 Order. The two present at-large trustees are school-district wide under the purported 1976 Order, but were limited to all areas of the school district not in the Bondurant area in the 1971 Order. None of those presently serving was elected from the proper trustee residence area. Therefore, there are no de jure school board trustees for the Pinedale School District.

A new election must be held as soon as reasonable to . elect one trustee from the Bondurant area "B" as described in the 1971 Order, and six trustees from the 1971 Order's area "A," which is the rest of the school district. Until that time, the present trustees will continue as de facto trustees of the district.

Of course, the present de facto trustees are eligible to run for their de jure position they meet the residence requirements of the trustee residence areas as set forth in the 1971 Order. And, if all statutory requirements, including popular approval, are satisfied, the district may be reorganized in the future into additional trustee residence areas.

CONCLUSION

The legal trustee residence areas of Sublette County School District No. 1 are the two contained within the November 19, 1971, Decision and Order of the State Committee on School District Organization. Purported changes to those trustee residence areas by January 6, 1977, action of the State Committee are void, as being beyond the State Committee's jurisdiction, since the requirement for voter approval to change trustee residence areas (Section 21-5-122, W.S. 1977) was not obtained. As soon as practicable, a new election must be held for all seven trustees for the Pinedale School Board, following the two trustee residence areas contained in the November 19, 1971, Order of the State Committee.