{65 Op. Atty
ision in Dow. Ren-
whieh held that the
fid not consttate 8
Sas for the Seventh
aver, hold that the
oility with respect to
mnt. Doe ». Renfrow,
US. (1981)
ae emily abel
Sf Appeals has twice con
Jog to be unreasonable,
ibe soa Si Peo
‘Gt Poop v. Walle,
Seah 6, 18 Ohio
se considered a seatehy at.
scary. You have not sup
jnation, We do note, how:
iw of an extensive oer
SN the soo! authorities
“sisted on school property.
dine ase i nol a Searcy &
seossary
rovides:
rules, ard regulb-
ool
have ee force of law
nly to each county.
rue
fect tie pot
Sore Gy:
same af law” Section
als, acting alone, from con
2ed they wet Hn acanedance
law 18.07 04 02AC3Ke).
Ger
201) 209
EpucaTion~ScuooL, Boarps—Scuoor. Constavetion—
‘TRANSFERS OF SURPLUS SCHOOLS ror WHICH STATE
Has AssuMED Bonp Dent —IMPact oF EDUCATION AR-
TICLE §5-307~ReINRURSEMPN? OF DEBT SERVICE.
December 10, 1980
Leo J. Ritter,
Executive Director,
Tateragency Committee for State
Public School Constrwelion
‘You have asked for our opinion concerning: (i) the impact of
new §5-307 of the Education Article (as enacted by Chapter
870, Laws of Maryland 1980) on the various other statutes
that relate to the disposition of surplus schools; (ji) the mean-
ing of the terms “debt service” and “local governmental pur-
poses”, as used in this new statute; and (ii) the means avail-
able to the State to ensure that any conditions that it imposes
on dispositions of surplus schools will be effective if there are
subsequent transfers of the property.
At the outset, we emphasize that the statute with which we
are required to deal~§5~307! ~is replete with apparent ambi-
guities, gaps, and inconsistencies. Consequently, some of our
responses to your inquiry necessarily must be somewhat less
than unequivocal, and we strongly urge the General Assem-
bly to review the statute carefully and enact clarifying legis-
lation 2s soon as practicable. In the meantime, for the rea
sons diseussed below, it is our opinion thats
1. Except as otherwise expressly prescribed in
§5-B07, the Board of Public Works (and its agent,
the Interagency Commitice for Public School Cor
struction) retains broad authority to approve, dis
approve, or conditionally approve, in any manner
reasonably within the public interest, the proposed
disposition of a surplus school.
2. The Board of Public Works is not required by
§5-307 to approve or disapprove of the proposed
disposition of any surplus school. However, the
Board may not disapprove of a disposition merely
beeause the Board is statutorily precluded by
§5-307(a) from requiring reimbursement for debt
service. Conversely, the Board may not approve of
a disposition if itis aware that the local jurisdiction210
{65 0p. Atty
will not comply with the reimbursement require-
ment of §5-307(b).
3. Except for the specific provisions regarding re
imburgement for debt service, §5-307 does not
the Board of Public Works in approving, dis-
wing, or imposing, ‘Sopa corditions on the
proposed or subsequent disgosition or use of a sur-
plus school.
. For a proposed disposition that falls within the
coterie se fortrin §5-807(), the Board of Public
Works may not, as a condition of approval, requi
reimbursement’ to the State for debt service—
property is sold or rented by the local
in which case the Board must require
of (in case of a sale) or a contrib
case of a rental) the then outstand-
ing debt service.
5, Fora proposed di
criteria set forth in §}
Works » its approval of
disposition, require the reimbursement of at least,
the outstanding debt service, In its discretion,
based on the circumstances of each ease, the Board
n ire the
ireater ding deb. service, up to the
total prineipal and interest paid, payable, and to
become payable with respect to the school in
question.
6. Section §5-807 does not apply when the con-
templated use of s surplus school is for other than
“local governmental purposes”.
the local governm:
funds and for wh
benefits. T
particular
meaning of §5-%
revetdiat doubt'in reasonable tanner, either
hy rule or on a case-by-case basis.
8, To safeguard the State's interests, the Board
Gen, 209] alt
of Public Works may impose appropriate conditions
on the local jurisdictions, require that the condi-
tions of its approval and appropriate termination
Provisions or covenants be included in the instru
ts of transfer and lease, and require that those
truments be recorded,
1
School Construction Program:
“Program/Pre Program Schools”
As we explained in 64 Opinions of the Attorney General 118
(1979), the State's interest in the disposition of public schools
3s traceable in part to its assumption of the costs of school
construction. State responsibility for these costs originated
in 1987, when, as part of its school construction aid program,
the State assumed a share of the costs of local debt for school
construct hool construction bonds that were out-
standing or 19672 As of July 1, 1971,
the State assumed the full cost of local debt for school con:
struction on school construction bonde that were outstanding
or obligated as of June 30, 1967. Id. at 1
ies for costs of pi
under contracts execu
, 1971, and before July 1, since July 1,
1971, has assumed the costs of public school construction per”
formed under contracts executed on or after that date, Id, at
120.
school construe-
after Febru-
, 1971-as ‘program schools”. Schools constructed
under contracts executed hefore February 1, 1971, will be
referred to below as “pre-program schools"?
ai
State Interest in Surplus Schools
A. Background
For a variety of reasons, declining student enrollment,{660p, Atty
ane
clorninant, loca) school authorities have bee
eso and progam sehuols and have been d
is, The mere
‘uperiptendenty
rmprehensive and
. A local schoo! bos
hoo! building bo
don, notwithstandin
ayreney Committe
approve of Une disposi
tee for any proposed disposi
is required without. regard to whet
tion of that. par-
ard the financing
remains unpaid or
ime of the proposed disposi
nerai No. 40-
approval authority, as it
‘apter 870, Laws of Marylar
ic Works (neting itsel? or through th
red
spo
the Attorney General
for the
inditions of,
use. Jel In doi
‘eration ta be pai
ther disposi2d (65. Op. Att'y
“(a) Notwithstanding the provisions of Article
8A, §15 of the Code, this State may not require
reimbursement of debt service from a county for 4
school that: .
(1) Was initially cons
ruary 1, 197
(2) Is no longer used {4 sthool purposes;
(8) Has had title transferred to a county gov-
ernment; and
(4) Ts being used for local governmental pur-
poses other than publie education; provided, how-
ever, that if a former schoo! building is sold by a
‘county government the State shall be reimbursed
for outstanding debt se nd if more than 10
percent of usable space within a former sehool is
rented for an amount exceeding the cost of pperat
ing and mai ig such space, such rental profit
Il be used toward retiring outstanding bonded
btodness.
(b) This State shall require reimbursement of debt
service from a eounty for a school that:
Was constructed under this subtitle;
Was initially constructed or substant
renovated after February 1, 19715
(8) Is no longer used for school purposes;
(4) Has had title transferred to 2 county gov-
ernment; and
6) Js being used for loeal governmental pur-
poses by the State or a counly or by any instrumen
fality of the State or a county other than publie
education.”
‘We assume that §5-807 was intended to provide direction
and guidance to the Board of Public Works in imposing eon
tions relating to reimbursement for State financing. Regret-
tably, however, §5~807 is far from being a model of clarity.
Tis internal structure is in some measure inconsistent and
ambiguous, and, therefore, its provisions do not lend them-
selves to unequivocal construction.
ted on or before Feb-
Gen. 209] 215
Because of these circumstances, we recognize that what
the Genecal Assembly intended to be the law might not be ex.
actly the same as what we here perceive, based on the back-
ground and language of the statute itself, to be the law. Con-
sequently, we strongly urge the adoption of clarifying
Vv
Scope of §5-207
A. Application of §5-807 to Program and PreProgram
Schools
It is at least evident that the concern of the statute is
ited to schools that are “surplus” ~i.e., schools that are “no
longer used for sehool purp 5-307(a)(2) and (b)(2)] and
“title{s} transferred to & county govern-
nd (b)(4)).
schools that are “pre-program sch Sub-
(b), in turn, generally deals with those surplus schools
since
It must be empha-
4 an exact one.
1. Differing Distinctions
As discussed in Part. of this Opinion, the dist be-
tween “pre-program schools” and “program schoo!s” turns on
whether the underlying contract was execitted before or
after February 1, 1971. In contrast, the distinction drawn by
{5-807 between schools governed by subsection (a) and those
governed by subsection (b) turns on whether the school was
“constructed” before or after February 1, 1971. It may be
that, in its consideration of §5-807, the General Assembly in-
tended to draw the line precisely between program schools,
on the one hand, and pre program schools, on the other.
However, as enacted, the section does not do so and—by its,
reference to the date of construction may have left an unin-
tended gay 8
For example, a pre-program chool (i., one contracted for
before February 1, 1971) that was only constructed after
February 1, 1971, clearly would not be covered by subsection