EDL,C.-\TIO?\: 1":\'.D::!'E::'\DE?\T SCHOOL DISTRICT: 80\"D EL::CT!O\: REVIEW _.:..:\D
COM\[E:\iT: Schoo: board \,·hich receives pe�irion by ,·0c�:-:: co hold snecia! dection to
authorize issuance o:' oonds tor school facility must submit project for �e\'ie,,· and commem . .'\
community recreationai facility as described by school district is subject 10 reviev.· and comment
proc:dures .o�nless the review and comment is negative. school board must call the specialo
            .
elecuon petmoned by ,·oters. Minn. Stat.§§ 121.148 (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. May 25. I 970.


                                          March 11, --1998
John M. Roszak, Esq.                                                                        159-a-3o
Jay T. Squires, Esq.                                        (Cr. Ref. to 159-b-L 622-a-l and 622-b)
Ratwik, Roszak, Maloney, P.A.
300 Peavey Bldg.
730 Second Ave. South
Minneapolis, MN 55402

Dear Messrs. Ro-;;zak and Squires:

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

 following:
                                           FACTS

                 In October of 1997, Independent School District No. 197 (West St. Paul­
         Mendota Heights-Eagan) was presented with a petition si gned by voters of the
         School District. The petition requests the Board of Education to authorize and
         bold 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 detennined. 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 anempted to determine the cost of architectural and design fees to
          comply with Minn. Stat. § 121.148 �- if the District is required to do so prior to
           conducting an dection pursuant to the petition. Although the matter is not without some
           uncenainty. the District has been advised that it could cost approximately S10.000 to
           S�5. 000 for such fees.
Messrs. Roszak and Squires
Page 2


       You then ask substantially the following:

                                     QUESTIO:'.'l' ONE

               Whether Minn. Stat.§ 205A.05. subd. l (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, construing the provisions

of Minn. Stat§ 123.32, subd. 22 (1967), we concluded that a petition of the voters caliing 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. l(Supp. 1997) rather than Minn. Stat.§ 123.32, subd. 22, we conclude

that the answer to your question remains the same under the current starute. In 1987, the

Legislature repealed Minn. Stat. § 123.32 (1986) effective July 1, 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. ).finn. Laws 1987. ch. 266. art. l. §§ 52 and 69.

 One obvious difference between the last versior: of Minn. Stat. § l �3.32. subd. 22 ( 1986) and the

 special election language of section 205A.05. si.:odivision 1 � enacted in l 987 is the addition of

 the first sentence of the latter. It 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. For 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.

§e124.A.03, subd. 2(a) and (b) (1996)); or to revoke or reduce the amount generated thereby ilii.e

at clause (c)); and to authorize the school board to issue general obligation bonds for school

facility construction projects (Minn. Stat.§ 475.58, subd. 1 (1996)). Except for the 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. Consequently, 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. Thus. we conclude

  that the first sentence of section 205A.05, subdivision l 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. Minn. 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 ine

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.

 Thus, 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, Minn. Stat. § 205A.05, subd. 1 (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_e issuance ofe
                                              1
 bonds for construction of school facilities.e




  1
    [teis not the intention of this opinion to review the sufficit:ncy of the petition nor is such a
  re\'ie\v 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 detennined 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

the 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 T\VO

                 If the answer to Question One is in the affinnative. whether the School
         District must comply with Minn. Stat. § 121.148 �-· the review and comment
         law, prior to the conduct of the election?

                                           OPINIOi'i

         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 installmem contract for purchas�
         or a lease agreement. hold a referendum for bonds. nor solicit bids for new
         construction. expansion. or remodeling of an educ ational facilhy that requires an
         expenditure in access of S--1-00.000 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 l 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. 1 (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

persu�ive 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.

 §e\ 21.148 (1996) and Minn. StaL § 121.15 (Supp. 1997) are compatible with the special electione

 by petition purposes of the section 205A.05. subdivision 1. Prior to holding a referendum for

 bonds, and to aid the Commissioner of Children, Families. -& Leaming in conducting a review

 and cornmenL a school district is required to provide the Commissioner with a substantial

 amount of information about a proposed project. Minn. Stat. § 121.15. subd. -: , Supp. 1997).

 Such information ranges from the anticipated need for the facility. a reasonably detailed

 description of the construction project. the estimated annual operating costs. the dfocts 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 ben.veen the district and other governmental and

nonprofit entities. Jv{inn. Stat. § 121. l 5, 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. If a

project receives either a positive or an unfavorable review and comment, the school board is

required to publish the Commissioner'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).

          [n summary, the information provided by the school district to the Commissioner allows

  the Commissioner to make a decision on the project. If a bond dection is to be held. the

  Commissioner· s decision is shared by the school board with its \"Otc!rs prior to the dect ion. The
Messrs. Roszak and Squires
Page 8


infonnation gives the voters information from which they can make infonned 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 act on 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.

§e121.148 and Minn. Stat.§ 121.15, the review and comment law, prior to conducting a bonde

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. ,ve answer your question in the

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

                 A school board ma v not proceed with construction if the state board of
                 education upholds the commissioner·s negative review and comment or
                 the commissioner's negative review and comment is not appealed.

 (Emphasis added.) To give effect to the impact of a negatiYe reYiew and comment. we believe

 the phrase ..proceed with construction .. in clause (c) inch.ides those items iciemified in sectione

  l 21. l 5. subd. 6 ( Supp. 1997) as part of an entire project leading up to the constructione. 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 comment were not enacted until 1990. Minn.Laws 1990, ch. 562, art. 5.

 §e1, subd. 3.e

         By contrast. the statutory provisions providing for a special election by petition of the

 voters significantly �redate 1990. The pro,isions of section 205A. 05, subdivision l. providing

 for a special election by petition of the voters. as enacted in 1987. are substantially identical to

 those contained in its longstanding predecessor. Minn. Stat. § 123.32. subd. 22 (l 986). \vhich

 was repealed in the same l 987 lav<1. Minn. Laws I 987. ch. 266. an. l. � 52 and an. 2. § 14.

  Minn. Stat.§ 645.37 t l 996) provides in rek\·am pan that:

                  When a la\v is repealed and irs provisions are at the same :ime ree:mcted
          in the same or substantially the same tierrns by the repealing law. :he �ar\ier la\V
          shall be consrrued :is continued in :.icti\·e npt!ration.
Messrs. Roszak and Squires
Page 10


       Thus, after 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 affirmatiYe. As indicated in your letter. the contemplated

 multi-purpose community recreational facility may consist of an ice arena. soccer field.

 swimming pool. and senior center. The facility \\·ould be �onstructed on school property and

 other governmental and private organizations may be invoh·ed in the project. lt is -!Stimated that.
Messrs. Roszak and Squires
Page l l


if constructed, the School District would utilize the facility in its education program on a jQ¾

time b�is 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." See Minn. Stat.

§e121.148, subds. 1 and 3 (1996).e

        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 commwlity recreational facility described

in your letter can be appropriately described as either a "school facility" or an "educational

facility." In determining whether the Legislature intended that a multi-purpose community

recreational facility as described is subject to the review and comment 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 \vhich a

 school district may issue its general obligation bonds. Minn. Stat.§ 475.52, subd. 5 (1996)

 provides that:

                  For capital improvements any school district may issue bonds for the
         acquisition or betterment of school facilities. includjn� gvm nasiums. athletic
         fields. stadia. teacherages. school garages. school buses. and all other facilities for
         administration. academic instruction. and phvsical and vocational l!ducation.

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

  are certainly facilities of the types identified in the -!mphasized language uf subdiv ision S.
MessrseRoszak
      .       and Squirese
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 .e

including other governmental units, it is also appropriate to examine Minn. Stat. § 471.19 (1996).

That provision provides that:

               The facilities of any school district, operating a recreational PCOID"aro
        pursuant to the provisions of Sections 471.15 to 471.19 shall be used primarily for
        the purpose of conductio2 the re�dar school curriculum and related activities and
        the use of school facilities for recreational purposes authorized by those sections
        shall be secondary.

(Emphasis added.) The proposal described in your letter seems to be intended to comply v.ith

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 121.1-48,

 detailing the review and comment process, us-� the term '"school facility."' See ::vtinneStat.
                                                                                         .

 § 121.148, subds. land 3. Thus. there does not appear to be an intended difference in the use ofe

 the two terms.

          In light of the foregoing. \ve conclude that th� Ll!gislature · s use or �he term ·'educational
          .
  facility . in sl!ction 121. l 5. subd. 6 whik using th� term --schooi foci lity.. ,)[ ·· school facilities·· ine

  related statutes is not legally significant. It is. therefore. our opinion that :i ;Jroposed constr..iction
\11essrs. Roszak and Squires
Page 13


multi-purpose community recreational facility by the School District is subject to the review and

comment provisions of sections l 21.148 and 121. 15.



                                                       Very truly yours.

                                                       HUBERT H. HUMPHREY III
                                                       Attorney General



                                                       CHARLES T. MOTIL
                                                       Assistant Attorney Gl!:1.eral
