{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 jurisdiction210 {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 disposi2d (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