Dear Ms Wallin:
On behalf of the Board of Elementary and Secondary Education (BESE), you have requested the opinion of this office regarding certain math and physics tutorials (BESE Math and Star Series) developed for the enhancement of secondary math and physics programs. Specifically, you are interested in determining: (1) whether BESE may allow the University of New Orleans (UNO) to market and sell the math and physics tutorials developed by UNO with funds ("8(g) funds") from the Louisiana Quality Education Support Fund (the "Support Fund"), and (2) if so, may the revenues derived therefrom be returned or disbursed to the Support Fund for BESE's use.
The undersigned has had the opportunity to discuss this matter with, among others, Ms. Weegie Peabody and Mr. Evan Brasseaux of BESE, and Mr. Bruce Macmurdo, BESE's attorney. Pursuant to those discussions, it is our understanding that the tutorials (which are available on video tape) were developed by UNO through a project/program funded by BESE using 8(g) funds. We are further advised that the tutorials are the property of BESE, and that UNO would like to market and distribute the tutorials on BESE's behalf, in other states.
With regard to the first question presented, this office is unaware of any provision of state law which would prohibit BESE, or UNO on BESE's behalf, from marketing the tutorials in other states. As such, it is the opinion of this office that BESE may allow UNO to market and sell the tutorials.
In connection with your second question we have examined La. Const. Art. VII, Sec. 10.1, which established and provides for the Support Fund.
In accordance with Art. VII, Sec. 10.1(2), ". . .seventy-five percent of the recurring revenues received under Section 1337(g) of Title 43 of the United States Code which are attributable to mineral production activity or leasing activity, and the percent remaining of the realized capital gains and interest income earned on investment of the Permanent Trust Fund [established pursuant to La. Const. Art. VII, Sec. 10.1.(A)(1)] . . . shall be deposited and credited to . . . the `Support Fund'." All other pertinent provisions of Art. VII, Sec. 10.1 concern disbursementsfrom (as opposed to disbursements to) the Support Fund. In particular, Art. VII, Sec. 10.1.(D)(2) provides for the disbursement of Support Fund monies, as appropriated by the legislature and allocated by BESE, for certain elementary, secondary or vocational-technical purposes.
Neither Art. VII, Sec. 10.1, nor any other provision of the state constitution or statutes provides for the return or disbursement of revenues generated by virtue of 8(g) funds to the Support Fund. Furthermore, there is no provision of the constitution or general law which would reserve such funds for BESE's use. To the contrary, Art. VII, Sec. 10.1.(D)(2) provides that "not more than fifty percent" of the monies in the Support Fund shall be disbursed for use by BESE.
Also pertinent to your inquiry is La. Const. Art. VII, Sec. 9, which requires that all money received by the state or any of its boards, agencies or commissions "shall be deposited immediately upon receipt in the state treasury". Furthermore, once deposited in the state treasury, these funds would not be available for expenditure, "except through specific appropriation". La. Const. Art. III, Sec. 16 Art. VII, Sec. 10.
Based upon the foregoing, it is the opinion of this office that any revenues generated by the marketing of the tutorials cannot be returned or disbursed to the Support Fund for BESE's use. Such revenues would have to deposited into the state treasury, where they would be subject to general appropriation by the legislature.
We trust the foregoing adequately addresses your questions. Please do not hesitate to contact us if we can be of further assistance to the Board of Elementary and Secondary Education.
Yours very truly,
RICHARD P. IEYOUB Attorney General
BY: ___________________________ JEANNE-MARIE ZERINGUE BARHAM Assistant Attorney General
RPI:JMZB:jv/95-249
Ms. Carole Wallin Executive Director Board of Elementary and Secondary Education P.O. Box 94065, Capitol Station Baton Rouge, Louisiana 70804-9064
DATE RECEIVED: 6/12/95
DATE RELEASED:
JEANNE-MARIE ZERINGUE BARHAM, ASSISTANT ATTORNEY GENERAL