TOM LOFTUS, Chairperson, Assembly Organization Committee
The Assembly Committee on Organization has requested my opinion regarding the authority of a school board of a common or union high school district to approve a property tax levy for the school district that differs from the annual tax levy approved by electors at the school district annual meeting. Specifically, the committee asks: "[U]nder ss. 120.10 and 120.12, Stats., which body, the annual meeting or the school board, has the ultimate authority to determine the property tax levy for the operation of the schools of the school district?"
The question arises because two statutes appear to give authority to two different entities to approve the property tax levy for the operation of the schools. Section 120.10 (8), Stats., authorizes the annual meeting to vote a tax for the operation of the schools while section 120.12 (3)(a) authorizes the school board to determine the amount necessary to be raised to operate and maintain the schools.
In its relevant parts, section 120.10 provides:
The annual meeting of a common or union high school district may:
. . . .
(6) TAX FOR SITES, BUILDINGS AND MAINTENANCE. Vote a tax to . . . maintain school district buildings. . . .
. . . .
*Page 47(8) TAX FOR OPERATION. Vote a tax for the operation of the schools of the school district.
In giving authority to the school board, section 120.12 provides:
The school board of a common or union high school district shall:
. . . .
*Page 48(3) TAX FOR OPERATION AND MAINTENANCE. (a) On or before the 3rd Monday in October, determine the amount necessary to be raised to operate and maintain the schools of the school district and public library facilities operated by the school district under s. 43.52, if the annual meeting has not voted a tax sufficient for such purposes for the school year. On or before the last working day in October, the school district clerk shall certify the appropriate amount so determined to each appropriate municipal clerk who shall assess the amount certified and enter it on the tax rolls as other school district taxes are assessed and entered.
(b) If a tax sufficient to operate and maintain the schools of a school district for the ensuing school year has not been determined, certified and levied prior to the effective date of school district reorganization affecting any territory of the school district, the school board of the reorganized school district shall determine, on or before the 3rd Monday of October following the effective date of the reorganization, the amount of deficiency in operation and maintenance funds on the effective date of the reorganization which should have been paid by the property in the reorganized school district if the tax had been determined, certified and assessed prior to the effective date of the reorganization. On or before the last working day in October, the school district clerk shall certify the appropriate amount to each appropriate municipal clerk who shall assess, enter and collect the amount as a special tax on the property. This paragraph does not affect the apportionment of assets and liabilities under s. 66.03.
(c) If on or before the 3rd Monday in October the school board determines that the annual meeting has voted a tax greater than that needed to operate the schools of the school district for the school year, the school board may lower the tax voted by the annual meeting. On or before the last working day in October, the school district clerk shall certify the appropriate amount so determined to each appropriate municipal clerk who shall assess the amount certified to him or her and enter it on the tax rolls in lieu of the amount previously reported.
The answer to your question is that the school board has the ultimate authority to determine the property tax levy for the operation and maintenance of the school district because section 120.12 (3) requires the board to determine the amount necessary to operate and maintain the schools. Prior attorney general opinions concluded that earlier versions of section 120.12 (3) gave the board the power "to operate and maintain a school regardless of whether the electors provide sufficient funds for such operation and maintenance." 13 Op. Att'y Gen. 380, 381 (1924), and 25 Op. Att'y Gen. 411, 413 (1936).
Therefore, if the school board determines that the tax voted at the annual meeting is not sufficient to operate and maintain the schools, the board is empowered to determine the amount necessary to be raised to operate and maintain the schools in the school district. See sec. 120.12 (3)(a), Stats. Also, if the board finds that the annual meeting voted a tax greater than that needed to operate the schools, the board may lower the tax voted by the annual meeting. See sec. 120.12 (3)(c), Stats.
DJH:SWK *Page 49