Opinion No. 70-16

STATE OF SOUTH DAKOTA OFFICE OF THE ATTORNEY GENERAL April 3, 1970 J. Bruce Blake Deputy State 's Attorney Minnehaha County Courthouse Sioux Falls , South Dakota 57102 OFFICIAL OPINION NO. 70-16 Employment of teacher's when school district is involved in reorganization suspended by litigation Dear Mr. Blake: We have your request for an official opinion wherein you recite the facts as follows: "On April 30, 1969 Renberg Common District No. 5 voted to dissolve and attach to Brandon Valley Independent School District No. 150 to be effective July 1, 1970 . The election was held pursuant to the provisions of SDC 1960 Supp. 15-2018(3) as amended by 1967 South Dakota Session Laws Chapter 40. This section is now embodied in SDCL 13-6-31 through 35. On June 2, 1969 , the Minnehaha County Board of Education passed a resolution dissolving Renberg District No. 5 and attaching it to Brandon Valley Independent School District No. 150 to be effective July 1, 1970 . On June 30, 1969 , Brandon Valley Independent School District No. 150 served Notice of Appeal on the County Board of Education and filed said Notice with the Minnehaha County Clerk of Courts. The Appeal was taken pursuant to SDCL 13-6-89 . Trial was had during August, 1969. The trial court held the Minnehaha County Board of Education did not abuse its discretion in attaching Renberg Common District to Brandon Valley Independent District. Notice of Appeal to the South Dakota Supreme Court was filed. The case is now pending in the South Dakota Supreme Court" "It is presently necessary for plans to be made concerning the operation of Renberg School for the school year 1970-1971." From the basis of these facts, you present the following two questions: "1. Who is responsible for making plans for the operation of Renberg Elementary School for the 1970-71 school year during the pendency of the action? "2. Who has the duty and authority to make contracts with teachers for Renberg Elementary School for the 1970-71 school year, as well as any other contracts which may become necessary?" Both Questions 1 and 2 may be answered together. The school board of the Renberg Common School District NO.5 is responsible for the operation of the school for the 1970-71 school year during the pendency of the action and has the duty and authority to make the contracts with teachers as well as other contracts which may become necessary during that period. SDCL 15-27-10 provides as follows: "When the State, any state board or office, any county, township, or municipal corporation, school district, or its officers, in a purely official capacity, shall take an appeal, service on the Notice of Appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from and no undertaking need be given, but the Supreme Court may, on motion require security to be given in such form and manner as it shall in its discretion prescribe as a condition of the further prosecution of the Appeal." This acts as a supersedeas and stays the execution of the order of the county board of education attaching Renberg to Brandon Valley . SDCL 13-43-7(6) provides as follows, is not for application: "The contract of a teacher shall become void without the ability of the teacher to collect damages when the school in which the teacher was hired to teach ceased to be operated by a vote of the electors." When the people in Renberg Common School District No. 5 voted to dissolve and attach to Brandon Valley Independent, they were doing so in compliance with SDCL 13-6-8 that required that all territory or land area within the state of South Dakota shall on or before July 1, 1970 become part of an independent school district. They were not voting to close their school and in this connection attention is directed to SDCL 13-6-9 which was part of Senate Bill 130 and which provides as follows: "The school board of an independent school district shall continue to operate any elementary school in operation as of December 1, 1968 until such time as only the resident voters of the area which operated said elementary school shall vote to cease operating said school or schools. . . " In the event that the Supreme Court should affirm the decision of the Circuit Court and thereby confirm the order of the Minnehaha County Board of Education approving of the attachment of Renberg to Brandon, it will be necessary for the Brandon Independent to continue operation of the Renberg school and as the school will need a teacher or teachers, as the case may be, we can see no reasonable or legal reason why the Independent School Board of Brandon should not honor the contracts with such teachers. However, should the order of the county board become effective during the school term 1970-71 a new contract should be negotiated. Respectfully submitted, Gordon Mydland Attorney General