                 TO BE PUBLISHED IN THE OFFICIAL REPORTS



                      OFFICE OF THE ATTORNEY GENERAL


                                State of California



                              JOHN K. VAN DE KAMP


                                 Attorney General



                            _________________________

                                           :
                OPINION                    :               No. 85-1103
                                           :
                    of                     :             APRIL 30, 1986
                                           :


        JOHN K. VAN DE KAMP                :


           Attorney General                :


                                           :


        RODNEY O. LILYQUIST                :


         Deputy Attorney General           :


                                           :



________________________________________________________________________


         THE HONORABLE HENRY G. MURDOCK, DISTRICT ATTORNEY,
COUNTY OF ALPINE, has requested an opinion on the following question:

               May a school district which accepts students from a neighboring school
district charge the latter district for the actual costs of educating the students?

                                    CONCLUSION

                 Except as provided in Education Code sections 46616 and 46619, a school
district which accepts students from a neighboring school district may not charge the
latter district for the actual costs of educating the students.

                                     ANALYSIS

            We are informed that the Vallecito School District in Calaveras County and
the Countywide Unified School District of Alpine County intend to enter into an inter-

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district attendance agreement. Six elementary school students living in Calaveras County
will attend school in Alpine County. Because the counties are mountainous and sparsely
populated, attendance in the adjoining school district will be significantly more
convenient for these students.

            The question presented for analysis is whether the Alpine school district
may charge the Calaveras school district for the actual costs of educating the students.
We conclude that it may not. Rather, the Alpine school district will receive
compensation from the state and is limited to such payments.

               The Legislature has enacted a detailed statutory scheme governing
interdistrict attendance agreements. (Ed. Code, §§ 46600-46620.)1 The principal
provision is section 46600:

              "The governing board of any school district may admit to the
       schools or classes maintained in the district any pupil who lives in another
       school district which maintains schools or classes of the grade levels which
       the pupil desires to attend. An agreement providing for such attendance
       shall be entered into between the governing board and the governing board
       of the district in which the pupil lives. The agreement shall stipulate the
       terms upon which the interdistrict attendance shall be permitted. The terms
       of the agreement shall require the payment to be determined in the manner
       provided by Section 46605." (Emphasis added.)2

              Section 46600 refers to section 46605 as governing interdistrict payments.
Both statutes were enacted together in 1976. (Stats. 1976, ch. 1010, § 2.) Section 46605,
however, has now been repealed. (Stats. 1980, ch. 1353, § 1.) Prior to its repeal, section
46605 specified that "tuition" was to be paid by the district of residence to the district of
attendance "not [to] exceed the actual cost per unit of average daily attendance for the
grade level or program less any income, other than tuition, received by the district of
attendance on account of such attendance." (Stats. 1976, ch. 1010, § 2.)

              With the repeal of section 46605, only two statutes mention the payment of
money by one district to another under an interdistrict attendance agreement. Section
46616 requires the district of residence to pay an amount based upon a specified formula
where the transfer would otherwise cause a "reduction of 25 percent or more in its federal

   1
     All references hereafter to the Education Code are by section number only.
   2
     The program is a voluntary one, although we note that if both districts "agree that it is for
the best educational and health interest of the child," the change in attendance "shall" occur.
(§ 46609.)

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grant pursuant to Public Law 81-874."3 Section 46619 requires the Fallbrook Union High
School District to pay a specified sum to the Capistrano Unified School District for
educating students residing at the Camp Pendleton Marine Corps Base.4

   3
      Public Law 81-874 (20 U.S.C. § 238) authorizes federal grants to local school districts for
educating children of persons who reside or work on federal property. Section 46616 states in
full:
                 "(a) Except as provided in subdivision (b) and (c), the average daily
        attendance for attendance of pupils from another district shall be credited to the
        district of attendance for purposes of determining state apportionments and the
        revenue limit pursuant to
        Section 42237 or 42238.
                 "(b) For any district which would have a reduction of 25 percent or more
        in its federal grant pursuant to Public Law 81-874 if the average daily attendance
        of pupils residing within the district were credited to the district of attendance,
        then the average daily attendance resulting from an interdistrict attendance
        agreement shall be credited to the district of residence and the district of residence
        shall pay a tuition to the district of attendance no later than the next August 31,
        after the close of the fiscal year as follows:
                 "(1) For attendance in regular day schools and summer schools the tuition
        per unit of average daily attendance, if any, shall not exceed the actual cost per
        unit of average daily attendance for the grade level or program less any income,
        other than tuition, received by the district of attendance on account of such
        attendance.
                 "(2) The district in which the pupil resides shall reduce its total revenue
        limit pursuant to Section 42238 by the total excess, if any, of its revenue limit per
        unit of average daily attendance multiplied by the total interdistrict attendance
        over the total tuition to be paid to districts of attendance.
                 "The district in which the pupil resides may increase its total revenue limit
        pursuant to Section 42238 by the total excess, if any, of the total tuition to be paid
        to districts of attendance over the district of residence's revenue limit per unit of
        average daily attendance multiplied by the total interdistrict average daily
        attendance.
                 "(c) For any consortium of school districts operating an adult education
        and a regional occupational program serving four or more school districts, the
        school districts may agree to claim the unit of average daily attendance on the
        basis of the district of residence and pay such interdistrict tuition to the district of
        attendance as agreed to by the participating districts." (Emphases added.)
    4
      Section 46619 provides in full:
                 "Notwithstanding any other provision of law, the Fallbrook Union High
        School District shall enter into an interdistrict attendance agreement with the
        Capistrano Unified School District to allow any pupil, at the request of his or her

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               Neither section 46616 nor section 46619 is applicable to the two school
districts in question. We are informed that federal funding would not be affected as
required in section 46616, and section 46619 is directed specifically at two other school
districts. We have found no other possible express statutory language authorizing the
interdistrict charges proposed here.

               It may be argued, however, that express authorization is not necessary and
that the interdistrict payment proposal is authorized by the general language of section
35160:

              "On and after January 1, 1976, the governing board of any school
      district may initiate and carry on any program, activity, or may otherwise
      act in any manner which is not in conflict with or inconsistent with, or
      preempted by, any law and which is not in conflict with the purposes for
      which school districts are established."

              Section 35160 was enacted to implement a 1972 amendment to the
Constitution. Section 14 of article IX of the Constitution was amended to provide in part:




      parent or guardian, to attend schools of the Capistrano Unified School District
      when the pupil resides in the San Onofre housing area of the Marine Corps Base,
      Camp Joseph H. Pendleton. No more than 150 pupils from the Fallbrook Union
      High School District may attend school in the Capistrano Unified School District
      pursuant to this attendance agreement.
              "The Fallbrook Union High School District shall be credited with the
      average daily attendance of these pupils for the purpose of determining state
      apportionments and revenue limits and for the purpose of receiving federal grants
      pursuant to Public Law 81-874.
              "The Fallbrook Union High School District shall pay tuition to the
      Capistrano Unified School District for the attendance of these pupils only in the
      amount of the state apportionments paid to the Fallbrook Union High School
      District for the attendance of these pupils, plus an amount computed as follows:
              "(a) Divide the amount of funds paid pursuant to Section 3 of Public Law
      81-874 (20 U.S.C. § 238) to the Fallbrook Union High School District in the
      current fiscal year by the average daily attendance of the district in the current
      fiscal year.
              "(b) Multiply the amount in subdivision (a) by the average daily
      attendance, for the year of attendance for secondary school pupils attending the
      schools of the Capistrano Unified School District pursuant to Section 46619."

                                              4


                                                                                       85-1103


               "The Legislature may authorize the governing boards of all school
       districts to initiate and carry on any programs, activities, or to otherwise act
       in any manner which is not in conflict with the laws and purposes for which
       school districts are established."

School districts now have more responsibility and flexibility in choosing their own
programs. Due to the new constitutional and statutory provisions, our analysis must
focus upon whether some specific law precludes the district action in question. (See
Hartzell v. Connell (1984) 35 Cal.3d 899, 915-916 (per Bird, C.J., Broussard and
Reynoso, JJ.); 65 Ops.Cal.Atty.Gen. 326, 327-328 (1982); 63 Ops.Cal.Atty.Gen. 851,
852-853 (1980).)

             We believe that section 46600 is such a specific law which precludes the
payment proposal here. It mandates that an interdistrict payment "shall" have its terms
"determined in the manner provided by section 46605."

              A direct link exists between the repealed section 46605 and current section
46616. At the time section 46605 was repealed, several of its provisions were inserted
into section 46616. (See Stats. 1980, ch. 1354, § 50, 59; Stats. 1976, ch. 1010, § 2.)

               Section 46616 provides payment for the education of students under
interdistrict agreements--either payment by the state under subdivision (a) or in limited
circumstances by the district of residence under subdivisions (b) and (c). We believe that
the Legislature has addressed the issue of interdistrict payments in section 46616 and has
intended for its terms to govern. When a special need has arisen, the Legislature has
dealt with it expressly and in detail. (§ 46619.) We have found no indication by the
Legislature that it intended for other than sections 46616 and 46619 to control the terms
of interdistrict payment agreements.

               In reaching this conclusion, we find support from certain well established
principles of statutory construction. When a statute adopts by specific reference the
provisions of another statute, "'such provisions are incorporated in the form in which they
exist at the time of the reference.'" (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d
53, 58-59; accord, People v. McGee (1977) 19 Cal.3d 94, 958, fn. 3; see Puckett v.
Johns-Manville Corp. (1985) 169 Cal.App.3d 1006, 1008.) Accordingly, "'repeal of the
provisions referred to does not affect the adopting statute in the absence of a clearly
expressed intention to the contrary.'" (Palermo v. Stockton Theatres, Inc., supra, 32
Cal.3d 53, 59; accord, People v. McGee, supra, 19 Cal.3d 948, 958, fn. 3; see Puckett v.
Johns-Manville Corp., supra, 169 Cal.App.3d 1006, 1009.)



                                              5

                                                                                      85-1103


              Here we have a clearly expressed intention to the contrary. Section 46605
was not merely repealed. Its key provisions were incorporated into section 46616 at the
time of the repeal, and the whole method of funding was essentially changed from a
tuition basis to a state funding basis. The combination of the two statutory changes
demonstrates a legislative intent to treat section 46616 as a continuation of section 46605
for purposes of section 46600. (See Puckett v. Johns-Manville Corp., supra, 169
Cal.App.3d 1006, 1009; People v. Oliver (1985) 168 Cal.App.3d 920, 926; Valley
Electric Co. v. Slaqle (1956) 142 Cal.App.2d 81, 83-84; 67 Ops.Cal.Atty.Gen. 393, 396
(1984); 2 Ops.Cal.Atty.Gen. 180, 181 (1943).)5 This latter principle of statutory
construction is now embodied in Government Code section 9604:

              "When the provisions of one statute are carried into another statute
       under circumstances in which they are required to be construed as
       restatements and continuations and not as new enactments, any reference
       made by any statute, charter or ordinance to such provisions shall, unless a
       contrary intent appears, be deemed a reference to the restatements and
       continuations."

             In answer to the question presented, therefore, we conclude that except as
provided in sections 46616 and 46619, a school district which accepts students from a
neighboring school district may not charge the latter district for the actual costs of
educating the students. Rather, it receives compensation from the state and is limited to
such payments.

                                             *****




   5
     As for section 46619, it would not be affected by section 46600 or any other statute since it
contains the phrase "[n]otwithstanding any other provision of law." (See In re Marriage of
Dover (1971 15 Cal.App.3d 675, 678, fn. 3; State of California v. Superior Court (1965) 238
Cal.App.2d 691, 695-696.)

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