Opinion No. 149-73
Topics:
SCHOOLS.
SCHOOL DISTRICTS.
TAXATION (SCHOOLS).
SPECIAL SCHOOL DISTRICTS.
Summary conclusion
A special school district formed under the provisions of House Bill 1096, 76th General Assembly, Sections 178.640-178.765, V.A.M.S. (1) would immediately upon formation become responsible for providing vocational education and special education for physically and mentally handicapped children resident within the county or counties included in the special district; however, the board of education of a special district would be required to accomplish at any given time only that which is reasonably possible; (2) would have no legal obligation to employ special education ,teachers under contract by component districts at the time of formation of the special district; (3) should present an estimate of the amount of money to be raised by taxation for the ensuing school year and the tax rate necessary to sustain the schools of the special district for the ensuing school year to the county clerk of each county included within the special district on or before July 15; and (4) may secure special educational services and vocational training services for children within its boundaries by contracting with any school district which has authority to furnish such services. If House Bill 474, 77th General Assembly, is signed by the Governor, it will not affect the organization or existence of an already existing special district, but will govern the operations of all special districts.
Contents of opinion
July 11, 1973
Honorable Vic Downing
State Representative, 162nd District
Rural Route 1
Bragg City, Missouri 63827
Dear Representative Downing:
This opinion is issued in response to your request for a ruling on the following questions:
"1. At what point and time must a special district formed under provisions of HB'1096 assume the responsibilities of providing education and training of physically and mentally handicapped children and vocational education as called for in Section 178.640(1) of the Act?
"2. Would a special school district formed under provisions of HB 1096 have any obligation to employ special education teachers under contract by the component districts at the time of formation of the special district?
"3. What is the latest date in a calendar year that a special district can be formed and still be eligible to levy and collect taxes for that year? Would a special district approved by the voters in January be eligible to collect taxes for that year?
"4. Would the board of education of the special district have the authority to contract with districts not included in the special district for either special education or vocational services?
"5. If HB 474, as perfected by the House, is enacted by the General Assembly and becomes law, what effect will it have on districts formed under provisions of HB 1096?"
For the purposes of answering the foregoing questions, we will assume that a special school district has been legally organized under. the provisions of Sections 178.640 through 178.765, V.A.M.S. (House Bill 1096, 76th General Assembly, Second Regular Session).
Question No. 1
You inquire as to when a special school district formed under the provisions of House Bill 1096 must begin providing services for physically and mentally handicapped children and when the district must begin providing vocational training.
All children in the State of Missouri are entitled to gratuitous instruction in free public schools established and maintained by the General Assembly. Article IX, Section 1(a), Missouri Constitution, 1945. In implementing this constitutional mandate, the Missouri General Assembly has authorized the creation of school districts. Under Section 178.760, the board of education of each school district, except counties in which special school districts have been organized, shall provide appropriate instruction for exceptional children. Where special school districts have been organized, Section 178.640, subsection 5, provides:
"The special school district shall provide free vocational instruction, classes or schools for children under the age of twenty-one years, resident within the district's boundaries, in addition to the program of providing free instruction, classes, school or schools, for children under the age of twenty-one years, resident within the district, who are physically or mentally handicapped, . . ."
In subsection 5, the mandatory "shall" rather than the permissive "may" is used. Because of the provisions of Section 178.760 providing that when a special district has been formed neither the State Board of Education nor any existing school district within the county shall be required to establish schools or classes within the county for the training or education of handicapped children, it would appear that the legislature intended that special districts, when formed, would take over the responsibility of providing this education.
Therefore, we conclude that as soon as a special school district is formed, it is responsible for providing special and vocational. educational services for children living in the special district. The board of education of the special school district should immediately after formation of the district make a good faith and reasonable attempt to provide these educational services. If, because of lack of facilities or inability to obtain teachers or for any other legitimate reason, the board of education of the special school district cannot begin providing immediately these services for children resident within its boundaries, we do not believe that the board would be held responsible for not immediately providing a full program for all children.
In State ex rel. Rice v. Tompkins, 203 S.W.2d 881 (St.L. Ct. App. 1947), the voters in the Williamstown School District approved the proposition that free pupil transportation be furnished to and from the schools of the district. Relator contended that his daughter was entitled to free transportation to and from school on each school day regardless of inclement weather or muddy roads. The Court refused to adopt relator's position stating in part as follows:.
"When transportation in a school district has been voted it is the duty of the Board of Directors or Board of Education to provide for such transportation, providing money is available in the incidental fund of the district to meet the expense thereof, and if the Board, without reasonable cause therefor, fails to provide transportation, it may be compelled to do so by mandamus. However, this does not mean that the court may by the hard and unyielding writ of mandamus substitute its discretion for that of the Board as to the means and manner and sufficiency and safety of the transportation to be furnished. . ." Id. at 883.
. . .The Board cannot be expected or required to do the impossible, and insure that each child is transported on each school day at all hazards and irrespective of weather and road conditions. If such was the mandatory duty of school directors it would be difficult to find a responsible person who would be willing to serve on a School Board." Id. at 884-885.
Question No. 2
You inquire whether, under the provisions of House Bill 1096, a special school district has an obligation to employ special education teachers under contract with the school districts which make up the special school district.
As previously noted, Section 178.760 provides that once a special school district is formed component school districts within the county are not required to establish schools or classes for the training or education of handicapped children. We have been unable to locate any statutory provision which would place on the board of education of the special school district any legal obligation to employ special education teachers, under contract by component districts, at the time of the formation of the special school district.
Question No. 3
As we understand this question, you are particularly interested in whether a special school district approved by the voters in January would be eligible to levy and collect taxes for the year in which it was formed.
Under Section 178.64g, subsection 3, a special school district is subject to all constitutional provisions and laws applicable to the organization and government of six-director school districts other than urban districts. Under Section 164.011, RSMo 1969, as amended, the board of education is required to prepare an estimate of the amount of money to be raised by taxation for the ensuing year and to designate the tax rate required to produce the amount necessary to sustain the schools of the district for the ensuing year. This estimate shall be forwarded to the county clerk on or before July 15. If the school district is divided by a county line, the estimate should be forwarded to the county clerk of each county in which any part of the district lies. Thereafter, the county clerk is required to assess the rate returned against all taxable property in the district and to extend the taxes on the tax books. Section 164.041, RSMo 1969.
Assuming that voter approval is obtained, the board of education of the special school district may initially "impose a property tax not to exceed the annual rate of 25 cents on the hundred dollar assessed valuation. ." See Sections 178.660 and 178.700. The board of education should, prior to July 15, forward to the county clerk of the counties included in the special school district, the annual estimate referred to in Section 164.011, and should set a tax rate sufficient to produce the income required (initially not in excess of 25 cents per one hundred dollars assessed valuation).
Question No. 4
You inquire as to whether the special school district can contract with other school districts to provide special educational services or vocational training services for the residents of the special district.
Under Section 70.220, RSMo 1969, the legislature has authorized political subdivisions to cooperate with each other.
"Political subdivisions may cooperate with each other, with other states, the United States or private persons. -- Any municipality or political subdivision of this state, as herein defined, may contract and cooperate with any other municipality or political subdivision, or with an elective or appointive official thereof, or with a duly authorized agency of the United States, or of this state, or with other states or their municipalities or political subdivisions, or with any private person, firm, association or corporation, for the planning, development, construction, acquisition or operation of any public improvement or facility, or for a common service; provided, that the subject and purposes of any such contract or cooperative action made and entered into by such municipality or political subdivision shall be within the scope of the powers of such municipality or political subdivision. If such contract or cooperative action shall be entered into between a municipality or political subdivision and an elective or appointive official of another municipality or political subdivision, said contract or cooperative action must be approved by the governing body of the unit of government in which such elective or appointive official resides."
Special school districts are political subdivisions for the purposes of Section 70.220. See Sections 70.210, RSMo 1969 and 178.640, V.A.M.S.
Therefore, we conclude that a special school district may secure special educational services and vocational training services for the children living within its boundaries by contracting with any school district which has the authority to provide such services.
Question No. 5
House Bill No. 474, 77th General Assembly, as enacted by the General Assembly, but not yet signed by the Governor, provides in part as follows:
"Section 35. Special school districts already in existence when this Act takes effect are not effected (sic) by the organizational provisions included herein but shall operate henceforth under the provisions of-this Act."
Therefore, we believe that if House Bill 474 is signed by the Governor, it will affect only the operation of special school districts formed under the provisions of House Bill 1096 and will not affect the organization or existence of existing special districts.
CONCLUSION
Therefore, it is the opinion of this office that a special school district formed under the provisions of House Bill 1096, 76th General Assembly, Sections 178.640-178.765, V.A.M.S., (1) would immediately upon formation become responsible for providing education for physically and mentally handicapped children and vocational training for children resident within the county or counties included in the special district; however, the board of education of a special district would be required to provide at any given time only those services which are reasonably possible; (2) would have no legal obligation to employ special education teachers under contract by component districts at the time of formation of the special district; (3) should present to the county clerk of each county included within the special district on or before July 15, an estimate of the amount of money to be raised by taxation for the ensuing school year and the tax rate necessary to sustain the schools of the special district for the ensuing school year; and (4) may secure special educational services and vocational training services for children within its boundaries by contracting with any school district which has authority to furnish such services.
If House Bill 474, 77th General Assembly, is signed by the Governor, it will not affect the organization or existence of an already existing special district, but will govern the operations of all special districts.
The foregoing legal opinion, which I hereby approve, was prepared by my assistant, D. Brook Bartlett.
Very truly yours,
John C. Danforth
Attorney General