Act 34 of l983--Paying of School personnel etc. Is the act which requires that school teachers receive at least seventy percent of the districts net current revenues (tax dollars) constitutional? ANSWER: Probably yes.

' STEVE CLARK ATTORNEY GENERAL u ‘ STATE.OF ARKANSAS OFFICE OF THE ATTORNEY GENERAL JUSTICE BUILDING, LITTLE ROCK 72201 OPINION NO. 85-26 January 29, 1985 Honorable Bobby Newman Representative, District 97 P. 0. Box 52 Smackover, Arkansas 71762 Honorable John M. Lipton Representative, District 90 108 S. Walnut Warren, Arkansas 71671 Dear Sirs:. This is in response to your opinion request wherein you pose the following facts and attendant question. Section 8(b) of Act 34 of the First Extraordinary Session of 1983 {Ark. Stat. 80-850.17(b)) requires each school district, beginning with the 1985-86 school year, to pay its qualifying certified personnel an amount at least equal to seventy percent (70%) of its net current revenue. Net current revenue is defined to include local tax receipts. We request your official opinion of the constitutionality of the General Assembly dictating to the local school districts the manner in which they must spend local tax receipts. For the following reasons this office is not prepared to conclude that §8(b) of Act 34 of the First Extraordinary Session of 1983 is unconstitutional. Attached for your consideration is an opinion previously issued by this office to the Honorable G. W. "Buddy" Turner on what became Act 34 (Opinion No. 83-204). The question submitted by Rep. Turner was similar to the inguiry herein and reads as follows: Does the provision of Senate Amendment No. 7 (herein- after "Amendment 7") to House Bill 44 of 1983 (lst Ex. Sess.) requiring local school districts to pay their certified personnel at least seventy percent (703%) of (501) 371-2007 Honorable Bobby Newman ot Honorable John M. Lipton . January 29, 1985 , Page 2 their net current revenue (beginning with the 1985~86 school year) violate Amendment 40 to the Arkansas Constitution of 1874? In concluding that Act 34 would withstand judicial scrutiny, in addition to the reasoning contained in the attached opinion response, pertinent and dispositive of your inquiry are the following legal principles: However, it is well-settled Arkansas law that in determination of constitutionality of an act of the General Assembly (House Bill 44 has been passed by the legislature with Amendment 7 and has, as of this writing, been engrossed), an Arkansas court bases its decision on whether it is possible to construe all parts of that act as legally valid. This test has been consistently applied by the Arkansas Supreme Court. See Carter v. State, 255 Ark, 225, 500 S.W.2d 368 (1973), cert. den., 416 U.S. 905, 94 S.Ct., 1611, 40 L.Ed.2d 110 (1974); Jones v. Mears, 256 Ark. 825, 510 S.W.2d 857 (1974); and Handy Dan Imp. Center, Inc. v. Adams, 276 Ark. 268, 633 S.W.2d 699 (1982). In Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979), the Court recognized: An act of the General Assembly should be given a construction that meets the test of constitu- tionality, if possible to do so. Id. at 121. Hence, for the above reasons this office is not prepared to change its position with respect to the constitutionality of Act 34 of the First Extraordinary Session of 1983. The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General C. R. McNair, III. Sincerely, TE LARK Attorney General SC:CRM: jkb Enclosure _ STEVE CLARK ATTORNEY GENERAL . , ‘ oa 5 STATE OF ARKANSAS OFFICE OF THE ATTORNEY.GENERAL JUSTICE BUILDING, LITTLE ROCK 72201 October 27, 1983 Opinion No. 83-204 The Honorable G. W. "Buddy" Turner, Chairman Education Committee House of Representatives State Capitol Little Rock, Arkansas 72201 Dear Representative Turner: This official opinion is written in response to your request of October 26, 1983 in which you ask the following question, as paraphrased: Does the provision of Senate Amendment No. 7 Chereinafter ‘Amendment 7") to House Bill 44 of 1983 (1st Ex. Sess.) re- quiring local school districts to pay their certified personnel at least seventy percent (70%) of their net current revenue (hegin- ning with the 1985-86 school year) violate Amendment 40 to the Arkansas Constitution of 1874? You also specifically request our review of Section 8(b) of House ‘s Bill 44 and the effect of Amendment 7 on its constitutionality. House Bill 44 of 1983 (Ist Ex. Sess.) provides a formula for distri- bution of state aid to Arkansas public schools. Senate Amendment No. 7 thereto provides, among other things, in school year 1985-86 and each year thereafter, "each district in the State shall pay its certified personnel an amount equal to at least seventy percent (70%) of its net current revenue", As you point out in your request, the net current revenue of a school district includes not only aid given by the State to school districts, but local tax monies as well. Amendment 40 to the Arkansas Constitution of 1874 authorizes local school districts to levy an’annual tax, by vote of their qualified elec- tors, for the maintenance of that district's schools, the retirement of existing indebtedness, etc. Additionally, Amendment 40 directs the Board of Directors of each district to prepare a proposed budget for the coming school year to submit to the public outlining proposed expenditures and the rate of tax necessary to fund those proposals sixty (60) days prior to the annual school election at which the elec- tors vote for or against the tax. (591) 371-2097 Vt! + <2 Te Honorable G. W. "Buddy" Turner, Chairman ’ October 27,’ 1983: * SS ra 2 Page 2 The Education Committee's concern, as outlHned in your request, is that should the amount budgeted by the local school board and/or the amount of local tax levied be insufficient to comply with the 70% provi- sion of Amendment 7, a schoo} district could be forced to divert local taxes levied for one purpose to another purpose; namely, the payment of salaries to its certified personnel. Clearly, Amendment 40 prohibits such a result as it states: “ (N)o such tax (a local levy) shall be appropriated for any pur- pose. . .than that for which it is levied. ' However, it is well-settled Arkansas law that in determination of con- stitutionality of an act of the General Assembly (House Bill 44 has been passed by the legislature with Amendment 7 and has, as of this writing, bee engrossed), an Arkansas court bases its decision on whether it is possible to construe all parts of that act as legally valid. This test has been consistently applied by the Arkansas Supreme Court. See, Carter v. State, 255 Ark. 225, 500 S.W.2d 368 (1973), cert. den., 416 U.S. 905, 94 S.Ct., 1611, 40 L.Ed.2d 110 (1974); Jones ve ‘v. Mears, 256 Ark. 825, 510 S. WwW. 2d 857 (1974); and Handy Dan Imp. Center, Inc. v. Adams, 276 Ark. 268, 633 S.W.2d 699 (1982). In Davis v. ‘Smith, “266 Ark. 112, 583 S.W. 2a 37 €1979), the Court recognized: An act of the General Assembly should be given a construction that meets the test of constitutionality, if possible to do so. Id. at 121. : It is possible for a school district to estimate its expenditures, propose a budget to local electors and subsequently raise an adequate amount. of tax to accomplish the dictates of Amendment 7 to House Bill 44. As noted above, local taxes levied for one purpose cannot be diverted . to another. However, Amendment 7 provides that its mandate may be waived by the local school board and a majority of its teachers if they agree to a different distribution; thus, a remedy exists to circumvent a violation of Amendment 40. With these factors and applicable legal principles in mind, it is my opinion that Amendment 7 to House Bill 44 could withstand judicial scrutiny under Amendment 40. Section 8(b) of House Bill 44 provides that seventy percent (70%) of a local district's net current revenue shall be paid to its qualified cer- tified personnel beginning in school year 1985-86. That subsection then defines a district's gross current revenue. The remainder of that subsection is specifically superceded by Senate Amendment 7. Net current revenue is defined at subsection (c) and would be judicial- ly viewed in conjunction with (b) to give meaning and effect to both ate e vel a e wo 4 oe" vaThe Honorable G. W. "Buddy" Furner, Chairman October 27, 1983 Page 3 provisions. See, e.g., Berry v. Sale, 184 Ark. 655, 43 S.W.2d 225 (1931) and Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977). . You request our review of the entirety of Section 8(b) as affected by Amendment 7. There is no facial conflict between these two provisions. Amendment 7 merely adds requirements to Section 8(b) in the original bill. . hde . Finally, you ask if Amendment 7, would, in any other manner, affect the constitutionality of House Bill 44. This Office has previously, in Official Opinion No. 83-202, opined that House Bill 44 meets the basic requirements set out by the Arkansas Supreme Court in Dupree v. Alma School District No. 30, 279 Ark. 340, ss S.W.2d ss (11983). Also, House Bill 44 contains a severability clause (Section 15) which would allow a court to strike Amendment 7 without affecting the remain-~ der of the enactment. While I recognize legal challenge could be made to Amendment 7 under constitutional or statutory law other than Amend- ment 40, it is not appropriate for me to speculate as to what form those challenges might take. Sincerely, A bouthak— | STEVE CLARK Attorney General SC:ble “>