School board decides to comment on AG opinion

The Ennis School Board voted unanimously Monday to respond to the Montana Attorney General’s opinion saying the board shouldn’t have used adult education and transportation funds to build the new school.

The board met over lunch at noon on Monday in the staff room at the Ennis High School with their attorney Elizabeth Kaleva. Less than 10 people were in attendance.
The opinion needs some clarification and Kaleva had a few things she wanted to comment on, she told the board. But deciding whether or not to comment was a decision that needed to come from the board not her.

“I need direction from you on whether or not you’d like to comment,” Kaleva told the board.

Montana Attorney General Steve Bullock issued a draft opinion last month in response to a request from Madison County Commissioners through Madison County Attorney Chris Christensen. Bullock’s opinion is open for comment from various agencies and the board until Jan. 13.

The opinion essentially stated that funds within the school district’s budget that are comprised of permissive levies – or levies that didn’t go before the voters – could not be used for building a new school.

In Montana, an attorney general’s opinion has the weight of law, meaning it can be overturned by a district court or through the legislative process.

The opinion isn’t clear on whether it would apply prospectively or retroactively, Kaleva said Monday. That’s something she would like to see clarified.

Also, neither the school district, or Kaleva was asked by Bullock’s office to provide information about the district’s funds or expenditures when he developed the opinion, she said.

“The district has never been asked for input from the attorney general,” Kaleva said.

The Ennis School Board won’t be the only entity commenting on the opinion. The Montana School Board Association has some concerns with Bullock’s opinion and the potential implications it has for school districts across the state, said Lance Melton, executive director for the Montana School Board Association.

Of prime concern is the fact that the opinion contradicts one solicited from the Montana Office of Public Instruction, Melton said.

More than a year ago, Christensen’s office asked OPI to weigh in on whether or not it was appropriate for the Ennis School District to use adult education funds for school construction.

In an August 2010 letter, Dennis Parman, deputy state superintendent of public instruction, said the school district could use the adult education funds for the building, but would need to use the new school in either a measure of space or time that was equal to the level of adult education money used in its construction.
Essentially, if the school district used adult education funds to pay for 49 percent of the new school, it would have to use 49 percent of the new building for adult education or use it for adult education 49 percent of the time, Parman concluded.

However, Bullock’s draft opinion doesn’t even recognize OPI ever issued an opinion on the matter, Melton said.

“The draft opinion doesn’t even mention a competing view from the agency charged with the administration of these laws,” he said.

Like Kaleva, Melton is also concerned about whether the opinion is supposed to apply retroactively or prospectively. Either way it will certainly impact other school districts in the state.

“We’re concerned about the statewide impact of that draft opinion as it’s currently written,” he said.

Parman at OPI has also been studying Bullock’s opinion, but his agency hasn’t decided yet on whether or not they will comment.

“It’s premature for me to say what we would have for a response at this time,” Parman said. “There’s quite a few elements in there that are fairly technical about what can or can’t happen, so we’re going through it with a fine tooth comb.”

Like Melton and the Montana School Board Association, Parman and OPI are looking at statewide implications of the draft opinion.

“We’re not looking through the lens of what does it mean to Ennis,” he said. “We’re looking through the lens of what does this mean for the entire state.”

As far as Bullock having an opinion contradictory to OPI’s, Parman said it is part of the process issues like this can go through.

OPI issues opinions on matters when their input is sought. Their opinions are developed by reviewing the law, legislative testimony, and other sources, he said. But an OPI opinion doesn’t hold the same weight as one from the attorney general. The attorney general, the courts or the legislature must ultimately decide aspects of the law that are unclear.

“We only have our interpretation that we had at that time and this has gone through the process these kind of things can go through,” Parman said.

Once Bullock receives comment, his office will consider the new input and ultimately issue a final opinion.

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