Op. Atty. Gen. 159a-3

EDL?CATIO;\`: I:\*DEP':`.\"DE-.\`T SCHOOL DISTRICT: BO.\`D ELECTIOX: RE\"[E\\` _A.\`D
C`OM.\/IE;\~'T: School board _\\'hich receives petition by voters to hold special election to
authorize issuance of bonds for school facility must submit project for review and comment A
community recreational facility as described by school district is subject to review and comment
procedures Unless the revie\\' and comment is negative. school board must call the special
election petitioned by \'oters. Minn. Stat. §§ l2l.l~'lS (1996). 121.15 (Supp. 1997)_ 205A.05

(Supp. 1997). Affirmative vote in bond election does not compel board to issue bonds.
Op. Atty. Gen. 159-a-3. l\/lay 25. 1970.

March ll , “1998
John M. Roszak, Esq. 159_3_3
Jay T'. Squires, Esq. (Cr. Ref. to 159-b-l , 622~a-l and 622-b)
Ratwtk, Roszak, Maloney, P.A.
300 Peavey Bldg.
730 Sccond Ave. South
Minneapolis, MN 55402

Dear Messrs. Roszak and Squires:

In your letter to Attorney Genera.l Hubert H. Humphrey III you present substantially the

following:
FACTS

In October of 1997, lndependent School District No. 197 (West St. Paul-
Mendota Heights-Eagan) was presented with a petition signed by voters of the
School District. The petition requests the Board of Education to authorize and
hold a special election for the school district “ in accordance with applicable and
current Minnesota State Statutes.” The petition goes on to state:

The Special Election ballot will pose question(_s) to District voters
authorizing the sale of bonds to finance the design, construction
and equipping of a multi-purpose activity center to be located at

‘ the Henry Sibley High School campus The activity center could
house facilities to serve all District resident and youth programs

Previously, the School District had created a community task force to study various
proposals, including proposals that contemplated the erection of a community activity
center in the District. In September of 1996, the School Board determined, based on cost
considerations and the availability of existing space. that plans to erect a community
facility were not feasible

As a result of receiving the petition for the special election. the administration of
the School District has attempted to determine the cost of architectural and design fees to
comply with Nlinn. Stat. § l'.‘.l.l48 e;§eg. if the District is required to do so prior to
conducting an election pursuant to the petition. Although the matter is not without some

uncertainty the District has been advised that it could cost approximately 310.000 to
S'.l$. 000 for such fees.

;\/lessrs. Roszak and Squires
Page 2

You then ask substantially the following:

QUESTIO.\' ONE
Whether Minn. Stat. § 205A.05, subd. 1 (Supp. 1997) authorizes voters of
a school district, by petition, to compel the School District to hold a special
election on the question of issuance of bonds for construction of school facilities‘?
OPINION

Subject to our response to your third question as discussed below, we answer your first
question in the affirmative In Op. Atty. Gen. 159-a-3, May 25, 1970, consuming the provisions
of Minn. Stat. § 123.32, subd. 22 (1967), we concluded that a petition of the voters calling for a
special election on the question of issuing bonds to finance construction of an outdoor hockey
arena required that the school board call an election on the matter. We also concluded, however,
that while an affirmative vote in the election authorized the school board to issue the bonds, it
did not compel the board to issue the bonds,

Although the special election provisions for school districts are now contained in Minn.
Stat. § 205A.05, subd. 1(Supp. 1997) rather than Minn. Stat. § 123.32, subd. 22, we conclude
that the answer to your question remains the same under the current statute. ln 1987, the
Legislature repealed Minn. Stat. § 123.32 (1986`) effective July l, 1988. Minn. Laws 1987,
ch. 266, art. 2, §§ 14 and 15. At the same time. it enacted Minn. Stat. § 205A.05_ to address the
subject of special elections in school districts. .\linn. Laws 1987. ch. 266. art. l. §§ 52 and 69.
One obvious difference between the last version of i\/linn. Stat. § 113.32. subd. 22 (1986) and the
special election language of section 205A.05. subdivision l as enacted in 1987 is the addition of

the first sentence of the latter. lt provides'.

Messrs. Roszak and Squires
Page 3

Special elections must be held for a school district on a question on which the

voters are authorized by law to pass judgment

Under Minnesota law, voters are authorized to “pass judgment” on a variety of issues
through the election process. F or example, voters are authorized to approve consolidation
actions (Minn. Stat. § 122.23, subds. 10-13 (1996)); to increase the size of the school board
(Minn. Stat. § 123.33, subd. 1 (1996)); to increase the tax levy of the school district (Minn. Stat.
§ 124.A.03, subd. 2(a) and (b) (1996)); or to revoke or reduce the amount generated thereby (ir_i.
at clause (C)); and to authorize the school board to issue general obligation bonds for school
facility construction projects fMim. Stat. § 475.58, subd. 1 (1990)). Except for tlte last example,
each of these elections mandates that some action be taken following an affirmative vote of a
majority of those voting on the question. In either case, however, the voters are “passing
judgment” on questions which necessitate voter approval as a prerequisite to action. The last
example, an election authorizing a school board to issue general obligation bonds, does not
compel the board to issue the bonds. Op. Atty. Gen. 159-a-3, May 25, 1970. Nevertheless,
unless an exception to the general rule applies, a school board may not issue general obligation
bonds for the school district without an affirmative vote at the election. Con_sequently, voters at
school bond elections are"‘passing judgment” upon the question of whether their school board
should be authorized to issue bonds for the purpose presented at the election. 'l'hus. we conclude
that the first sentence of section 205A.05, subdivision 1 does not preclude a special election by

petition on the question of authorizing the school board to issue bonds.

Messrs. Roszak and Squires
Page 4

Significantly, the remainder of the special election language of section 205A.05,
subdivision 1 (Supp. 1997) is substantially identical to its predecessor. ;\/Iinn. Stat. § 123.32,
subd. 22, (1986). The language of section 123.32, subdivision 22. relied upon in Op. Atty. Gen.
159-a-3, May 25, 1970, remained.the same until its repeal in 1987. That language provided in

relevant part that:

The board of an independent district may and upon petition . . . shall by
resolution call a special election to vote on any matter requiring approval of the
voters of the district.

The new special election provision, enacted as section 205A.05_. subdivision 1 provides in

relevant part that:

Upon petition . . . the school board shall by resolution call a special

election to vote on any matter requiring approval of the voters of a
district

Consequently, for purposes of responding to your first question, the provisions of the new school
district special election statute contain substantially the same terms as its immediate predecessor.
'l`hus, we conclude that your first question is resolved by Op. Atty. Gen. 159-a-3, May 25, 1970.
Based upon the foregoing, it is our opinion that, subject to the qualifications discussed
below, t\/[inn. Stat. § 205A.05, subd. l (Supp. 1997) authorizes the voters of a school district, by
petition, to compel the school district to hold a special election on the question of issuance of

. . . . l
bonds for construction of school factliues.

l lt is not the intention of this opinion to review the sufficiency ot` the petition nor is such a
review necessary to respond to the questions presented.

Messrs. Roszak and Squires
Page 5

Your letter presenting the District’s request for an opinion also expresses a concern about
another issue raised by the first question. The concern is that the voters’ petition has been
presented in a situation where the School Board has recently considered the feasibility of the
project which is the subject of the petition and the School Board determined not to pursue the
project. Under the facts presented, however, more than a year has passed between the School
Board’s decision that the project was not feasible and its receipt of the voters’ petition, While
die facts presented do not indicate whether the School Board ever submitted the question of
issuing bonds for the community recreational facility to the voters, Minn. Stat. § 475.58, subd. la
(1996) allows the question of authorizing bonds to be raised a second time within a period of as
little as 180 days from the date an election was held for the same purpose and for the same
amount The fact that the School Board considered the feasibility of the proposed project or a
similar one over a year ago does not now bar a special election by petition from being held.

QUESTION 'I"WO
lf the answer to Question One is in the afiirmative. whether the School

District must comply with Minn. Stat. § 121.148 eLseg.. the review and comment

law, prior to the conduct of the election?
OPINION

We answer to your second question in the affirmative Minn. Stat. § 121.15, subd. 6
(Supp. 1997) provides in relevant part that:

A school district . . . must not initiate an installment contract t’or purchase

or a lease agreement hg_\d_a_refere_nd_u_tn_fgr_b_gn§i§. nor solicit bids for new

construction expansion. or remodeling of an educational facility that requires an

expenditure in access of 5400.000 per school site prior to review and comment by
the commissioner.

Messrs. Roszak and Squires

Page 6

(Emphasis added.) The special election under section 205A.05, subdivision l. discussed in
response to your first question, is certainly a "referendum for bonds” within the meaning of
section 121.15, subdivision 6. Neither section 205A.05 nor the review and comment provisions
of section 121.15 contain any express exemption allowing a referendum for bonds to be held
pursuant to a petition for a special election without a review and comment. Consistent with the
goal of statutory construction, we believe that section 205A.05, subdivision 1 and section 121.15,
as relevant to the subject of your questions, may be construed so that effect may be given to both.
Minn. Stat. §~545.26, subd. l (1996).

One purpose of the special election by voter petition set out in section 205A.05,
subdivision 1 is to allow questions to be put before the voters of the district where the school
board may have chosen not to do so. An affirmative vote at the special election, particularly
where a significant number of voters participate and support the ballot question. may be
persuasive and convince the school board to change its position and pursue the project which is
the subject of the ballot. The purposes of the review and comment provisions of Minn. Stat.

§ 121.148 (1996) and Minn. Stat. § 121.15 (Supp. 1997) are compatible with the special election
by petition purposes of the section 205A.05. subdivision l. Prior to holding a referendum for
bonds, and to aid the Commissioner of Children, Families. ~& Learning in conducting a review
and comment a school district is required to provide the Commissioner with a substantial
amount of information about a proposed project Minn. Stat. § 121.15. subd. 7 tSupp. 1997)
Such information ranges from the anticipated need for the t`acility. a reasonably detailed

description ot" the construction project the estimated annual operating costs. the effects of the

Messrs. Roszak and Squires

Page 7

proposed facility on the district’s operating budget. the anticipated benefit of the facility to the
area and the level of collaboration at the facility between the district and other governmental and
nonprofit entities Minn. Stat. § 121.15, subd. 7(b), (C), (d). (f), (k), and (1).

Using the information required to be submitted by subdivision 7, and other information as
determined by the Commissioner, the Commissioner evaluates the proposed project, addresses its
educational and economic advisability, and returns the review and comment to the school
district within 60 days Minn. Stat. § 121.15, subd. 8 (1996). The review and comment may be
either positive, unfavorable or negative. Minn. Stat. § 121.148, subd. 1; Minn. Stat. § 121.15,
subd. 8 (1996). The results of the review and comment impact a bond election differently. lf a
project receives either a positive or an unfavorable review and comment, the school board is
required to publish the Comrnissioner’s review and comment in the district’s legal newspaper
before a bond election is held. Minn. Stat. § 121.15, subd. 9 (1996). A positive review and
comment provides information to the voters so that they can make an informed decision at the
polls An unfavorable review and comment requires reconsideration of the project by the school
board and, if the question is nevertheless submitted to the voters requires a 60% affirmative vote
at the election to authorize the issuance of school bonds Minn. Stat. § 121.148, subd. 4. A
negative review and comment precludes the district from proceeding with construction Minn.
Stat. § 121.148. subd. 3(c) (1996).

ln summary, the information provided by the school district to the Commissioner allows
the Commissioner to make a decision on the project. lt` a bond election is to be held. the

Commissioner's decision is shared by the school board with its voters prior to the election. The

Messrs. Roszak and Squires

Page 8

information gives the voters information from which they can make informed decisions on the
project in deciding whether to authorize the school board to issue bonds for the project.

Based on the foregoing, section 205A.05, subdivision l allows voters to petition to bring
certain matters to an election by all of the voters of the district where the school board may have
otherwise declined to acton the matter. Sections 121.148 and 121 .15 provide a procedure
through which voters will receive information from which they can make an informed decision at
the polls It is, therefore, our opinion that the school district must comply with Minn. Stat.

§ 121.148 and Minn. Stat. § 121 .15, the review and comment law, prior to conducting a bond
election initiated by a petition of the voters pursuant to section 205A.05, subdivision l.
QUESTION THREE
If the answer to Question No. 2 is in the affirmative whether a bond
election pursuant to a petition must be held if the review and comment process
results in a negative review and comment to the School District?
OPINION

Based upon the assumption that the Commissioner`s negative review and comment

follows the procedure set out in Section 121.148. subd. 3. we answer your question in the

negative Minn. Stat. § 121.148, subd. 3(c) provides that:

A school board mgv_ngt_pmgej_d_with_c_o_n§tni§jio_n if the state board of

education upholds the commissioners negative review and comment or
the commissioners negative review and comment is not appealed.

(Emphasis added.) To give effect to the impact of a negative review and comment we believe
the phrase “proceed with construction" in clause (c) includes those items identified in section

121.15. subd. 6 (Supp. 1997) as part of an entire project leading up to the construction. expansion

Messrs. Roszak and Squires
Page 9

or remodeling of a school building. Thus, a school district which receives a negative review and
comment “must not initiate an installment contract for purchase or a lease agreement

hold a referendum for bonds, nor solicit bids for new construction, expansion, or remodeling or
an education facility . . . Minn. Stat. § 121.15, subd. 6. We reach this conclusion since each of
these activities involves an expenditure of funds and some involve long term commitments by a
school district where the school district has been precluded by a negative review and comment
from proceeding with construction.

We realize that the conclusion that a negative review and comment precludes a bond
election by voter petition is at odds with one of the conclusions in Op. Atty. Gen. 159-a-3,

May 25, 1970. In that opinion, we concluded that a petition by voters for a special election on
authorizing the sale of bonds required the school district to hold such an election. However, the
statutory provisions precluding a school district from proceeding with construction based on a
negative review and continent were not enacted until 1990. Minn. Laws 1990, ch. 562, art. 5 .

§ 1, subd. 3.

By contrast the statutory provisions providing for a special election by petition of the
voters significantly predate 1990. The provisions of section 205A. 05, subdivision 1. providing
for a special election by petition of the voters as enacted in 1987. are substantially identical to
those contained in its longstanding predecessor. l_\/linn. Stat. § 123.32. subd. 22 (1986). which
was repealed in the same 1987 law. Minn. l_a\vs l987. ch. 266. art. l. § 52 and art. 2. § 14.
Minn. Stat. § 645.37 t 1996) provides in relevant part that:

When a law is repealed and its provisions are at the same time reenacted

in the same or substantially the same terms by the repealing la\v. :he earlier law
shall be construed as continued in active operation

Messrs. Roszak and Squires
Page 10

Thus, afier receipt of a petition, Minn. Stat. § 205A.05. subd. l, containing substantially
the same language construed in Op. Atty. Gen. 159-a-3, May 25, 1970_. generally requires a _
school district to hold an election on the question of authorizing the school board to issue bonds
for construction On the other hand, a negative review and comment issued pursuant to sections
121 . 148 and 121 .15 precludes the holding of such an election. This conflict is resolved by Minn.
Stat. § 645.26, subd. 4 (1996) with the result that the law specifying the impact of a negative
review and comment, as the law latest in date of final enactment, prevails This interpretation
also avoids the unreasonable result of holding an election to authorize the issuance of bonds for a
project which has been precluded by a negative review and comment. Minn. Stat. § 645.17
(1996).

Based upon the foregoing, it is our opinion that no school bond election may be held if a
negative review and comment is issued regardless of whether the election is proposed by the
school board or pursued by the voters through a petition.

QUESTION FOUR

Whether the review and comment procedures apply to the construction of
a multi-purpose community recreational facility?

OPINION
We answer your question in the affirmative As indicated in your letter. the contemplated
multi-purpose community recreational facility may consist of an ice atena. soccer field.

swimming pool. and senior center. The facility would be constructed on school property and

other governmental and private organizations may be involved in the project lt is estimated that.

Messrs. Roszak and Squires

Page ll

if constructed, the School District would utilize the facility in its education program on a 50%
time basis while other community activities would utilize the facility the other 50% of the time.
You have noted that Minn. Stat. § 121.15, subd. 6 (Supp. 1997) uses the term “educational

facility” while Section 121 .148 (1996) uses the term “school facility.” §§e Minn. Stat.

§ 121.148, subds. 1 and 3 (1996).

In the context of a multi-purpose community recreational facility intended to be used as
described in your letter, we do not find the difference in the terms “educational facility” and
“school facility” to be significant The multi-purpose community recreational facility described
in your letter can be appropriately described as either a “school facility” or an “educational
facility.” ln determining whether the Legislature intended that a multi-purpose community
recreational facility as described is subject to the review and cement provisions it is
appropriate to look at other laws on the same or a similar subject Minn. Stat. § 645. 16 (5)
(1996). Since the School District would be proceeding with an election to authorize the sale of
bonds for the construction of such a facility, it is appropriate to look to the purposes for which a

school district may issue its general obligation bonds Minn. Stat. § 47i i') subd. 5 (1996)

..,._r_.,

provides that:

F or capital improvements any school district may issue bonds for the
acquisition or betterment of scthl_t`;l_Qili_ti§§ …
fields,t sta adig, teacherages school garages school buses pad all Qt r`ah§;f gj|jt`e tel s fg;
administration academic instruction and physle and vocational education

( Emphasis added.) The inclusion of the ice arena. soccer tield_ and swimming pool in the proposal

are certainly facilities of the types identified in the emphasized langua let of subdivision- \

a_`

Messrs. Roszak and Squires
Page 12

All of the examples identified in subdivision 5. including the athletic buildings fall under the
general term, “school facilities”

Since the School District may pursue the community recreational facility with others
including other govemmental units, it is also appropriate to examine Minn. Stat. § 471 . 19 (1996).

That provision provides that:

I]E.]..[ cl H.. .a ,
pursuant to the provisions of Sections 471. 15 to 471. 19 shallhe_gsed_pdmmily_fg£
thenumosentcnndncnngthetegulatshocl_cunicuhnnandrelaeduymes and
the use of schm)_l_fagilities for recreational purposes authorized by those sections
shall be secondary.

(Emphasis added.) 'I'he proposal described in your letter seems to be intended to comply with
the use requirements of section 471 . 19. The language of that section requires that such facilities
must be used primarily for conducting “the regular school curriculum and related activities."' i e
“educational” purposes and also recognizes that such “school facilities” can be used for
recreational purposes

Finally, and significantly, while section 121 .15. subd. 6. requiring a review and comment
prior to a bond election uses the term “educational facility_." the provisions of section 121.1-18,
detailing the review and comment process, use the term school facility." S_e .\/linn. Stat.
§ 121.148, subds 1 and 3. Thus. there does not appear to be an intended difference in the use of
the two terms

ln light of the foregoing we conclude that the Legislature`s use of the term “educational
facility" in section 121.15. subd. 6 while using the term "school t`acility" or "school f`acilities" in

related statutes is not legally significant lt is therefore. our opinion that a proposed construction

.\Aessrs. Roszak and Squires
Page 13
multi-purpose community recreational facility by the School District is subject to the review and

comment provisions of sections 121.1-18 and 121.15.

Very truly yours

HUBERT H. HUMPHREY 111
Attorney General

CHARLES T. MOT'i'l_
Assistant Attorney General