OFFICIAL OPINION No. 5

OFFICIAL OPINION No. 5 Public school buildings-Leases-Superintendent of Public Instruction-Stale Council of Education-Act of March 10, 1949, P. L. 30. A school district may lease, for a reasonable term at a fair consideration, an unused public school building to a religious group for parochial school use ; but, the Superintendent of Public Instruction has no ad interim authority conditionally to approve such a lease on behalf of the State Council of Education. Harrisburg, Pa., September 12, 1957. Honorable Charles H. Boehm, Superintendent of Public Instruction, Harrisburg, Pennsylvania. Sir: We have received your request, dated September 4, 1957, for advice concerning the meaning and effect of § 775 of the "Public School Code of 1949," Act of March 10, 1949, P. L. 30, as amended, 24 P. S. § 7-775. 52 OPINIONS OF THE ATTORNEY GENERAL Specifically, you inquire whether the provisions of § 775 authorize the School District of Lebanon City to lease an abandoned public school building to the appropriate officials of St. Mary's Parish of Lebanon City for use as a parochial school. St. Mary's Parish is affiliated with the Roman Catholic Church. The proposed leasing agreement, which is for a term of one year, would require St. Mary's Parish to pay an annual rental to the School District of $1,200.00 and to be responsible for all costs incident to the operation of the school building. We understand that the School District has no present need for the use of the school building in question and that, if the building may be leased to St. Mary's Parish, the building will be used in connection with the education of some 250 children. Section 775 of the "Public School Code," 24 P. S. § 7-775 provides, inter alia, that: "The board of school directors of any school district shall have power and authority to lease any part of their respective school building, equipment, and premises, or any vacant build- ing, for any educational purpose. Such leases shall be subject to the terms and regulations which may be adopted by the board of school directors, and except in districts of the first class, shall be further subject to the approval of the State Council of Education." It is at once apparent that the proposed leasing agreement between the School District of Lebanon City and St. Mary's Parish is within the statutory authorization for the leave of "any vacant building, for any educational purpose." Moreover, under the facts presented, there can be no question as to the reasonableness of the term of the lease or the fairness of the consideration therefor. Since the lease is for a period of only one year, there will be no problem in recovering the building at the end of that time should the School District desire to use the building again; the fixed rental involved ($1,200.00) is substantial, not merely nominal; and the lessee is additionally ob- ligated to maintain the building during the term of the lease. The advantages of the proposed leasing agreement need only be mentioned to be appreciated: the School District will receive the fixed annual rental plus the maintenance (and possible improvement) of a building which, if left vacant, would be susceptible to vandalism; and, at the same time, there is implementation of the traditional policy of the Commonwealth of encouraging educational opportunities for the young. OPINIONS OF THE ATTORNEY GENERAL 53 Nor does the fact that the proposed lessee is a religious group raise any constitutional objections to the lease. Article X, Section 2, of the Pennsylvania Constitution, which provides that no money raised for the support of the public schools shall be appropriated to or used for the support of any sectarian school, is plainly inapposite. Equally inapposite are the provisions of the Federal and State Constitutions which forbid the establishment or preference of religion. We know of no constitutional prohibition against the leasing of an unused public school building for a reasonable time and for a substantial considera- tion to a religious group. Section 775 requires that where a board of school directors (other than in a district of the first class) leases a vacant building for edu- cational purposes, such lease shall be subject to the approval of the State Council of Education. Since the next meeting of the State Council of Education is not scheduled until September 18, 1957, you also inquire whether the Super- intendent of Public Instruction has ad interim authority conditionally to approve a lease entered into under the provisions of § 775 pending formal action by the State Council of Education. If the Superin- tendent does possess such authority, it must have its root in the statute laws of the Commonwealth, either expressly or by necessary implica- tion. We have been unable to find any such statutory authorization. Section 408 of "The Administrative Code of 1929," Act of April 9, 1929, P. L. 177, 71 P. S. § 118, provides that: "The State Council of Education shall consist of the Super- tendent of Public Instruction, who shall be the president and chief executive officer thereof, and nine other members." However, the fact that § 408 of "The Administrative Code" designates the Superintendent of Public Instruction as "the president and chief executive officer" of the State Council of Education does not, without more, clothe the Superintendent with ad interim authority to act for the State Council of Education in connection with § 775 of the "Public School Code of 1949"; and nowhere in the "Public School Code of 1949" or in "The Administrative Code of 1929" is any additional au- thorization to be found. It is, therefore, our opinion and you are accordingly advised that: 1. Section 775 of the "Public School Code of 1949" authorizes a school district to lease, for a reasonable term at a fair consideration, an unused public school building to a religious group for parochial school use. 54 OPINIONS OF THE ATTORNEY GENERAL 2. The Superintendent of Public Instruction has no ad interim au- thority conditionally to approve such a lease on behalf of the State Council of Education. Very truly yours, DEPARTMENT OF JUSTICE, JOSEPH L. DONNELLY, Deputy Attorney General. THOMAS D. McBRIDE, Attorney General.