Opinion No. ( 1990 )

The Honorable James T. Jordan State Representative P.O. Box 518 Monticello, Arkansas 71655

Dear Representative Jordan:

This is in response to your request for an opinion on the following questions regarding Act 30 of 1989, which is codified at A.C.A. 6-20-309 (Supp. 1989).

1. How is incentive money determined?

2. Who gets incentive money if one district retains an elementary school but consolidates its high school to another district?

3. If consolidation and annexation are not desirable alternatives, how is tuition to be determined for students being sent to another district for grades seven though twelve only?

With regard to your first question, please note that I have enclosed a copy of Section 6-20-309, which outlines the incentive allowance computation for consolidation or annexation of varying numbers of districts. The allowance is tied to the average daily membership ("ADM") of the districts, with stated minimums and maximums. Subsection (d) addresses the amounts added to the new district's aid in the first, second, and third years of consolidation. Subsection (e)(1) provides for the computation of the incentive allowance when parts of a district are annexed to several districts.

The definition of "ADM" is set out in A.C.A. 6-20-302 (Supp. 1989) as follows:

As used in this chapter, unless the context otherwise requires:

(1) "Average daily membership (ADM)" means the total number of days attended plus the total number of days absent by students in grades kindergarten through twelve (K-12) during the first three (3) quarters of each school year, divided by the number of school days actually taught in the district during that period of time. Provided that, for aid purposes, beginning in 1989-90, the ADM of growing school districts, districts whose ADM, as defined above for the previous year exceeds by one (1) student or more its ADM for the second previous year, shall be increased annually by one-sixth (1/6) of the total percent of their increase for each twenty seven million dollars ($27,000,000) or major fraction thereof, of increase in Minimum Foundation Program Aid for the year. This schedule of proportionate increases shall continue until the total recorded growth becomes a part of the computation for Minimum Foundation Program Aid for growing school districts. Aid computed using increased ADM as herein provided shall be corrected at the end of the first three (3) quarters of the year in which the aid is distributed to reflect the actual growth of the affected district or any other school district indicating growth that year. Such corrections shall be determined by recalculating individually the aid due each affected district and shall be made before the end of the year in which the aid is distributed. No such correction, however, shall result in any school district's ADM for aid purposes in any year being less than that shown for the districts in the first three (3) quarters of the previous year.

(A) As applies to this subchapter, students who may be counted for average daily membership are:

(i) Students who reside within the boundaries of the school district and are enrolled either within a public school operated by the district or in a public school operated by another district or a private school for special education students, with such attendance in both instances resulting from a written tuition agreement approved by the Department of Education; and

(ii) Legal transferred students living outside the district but attending a public school in the district.

(B) For purposes of this subchapter, kindergarten students enrolled in one-half (1/2) day programs shall be counted as one-half (1/2) time students.

Section 6-20-309(e)(2) Supp. 1989) must be considered in response to your second question. This subsection states:

Any school district which chooses to retain its elementary school but annex or consolidate its high school with another district shall be entitled to the full incentives provided for by this subchapter, or the average daily membership (ADM) of the high school being annexed, except that the minimum number of allowable add-on weights of one hundred (100) shall not apply.

It is my opinion that the district choosing to retain its elementary school but consolidate its high school will receive the incentives. This conclusion is based upon the clear language of Section 6-20-309(e)(2) (Supp. 1989). It is also significant to note in this regard that although the language has been modified substantially, the former law, (Acts 1983) (Ex. Sess.), No. 34, as amended), similarly established an entitlement to an allowance for consolidation on the part of the district which chose to retain its elementary school but annex or consolidate its high school with another district. The legislative history thus evidences legislative intent in this regard, supporting the conclusion that this particular aspect of the law has not been changed.

In response to your final question, our research has not disclosed a provision for sending all students in grades seven through twelve to another district, where consolidation and annexation are not desired. The provision for transfer on petition of students does provide for tuition agreements. See also A.C.A. 6-18-316 (Supp. 1989), See also A.C.A. 6-18-204 (broadering [sic] curriculum offerings). We are therefore unable to answer this question without reference to the authority for the attendance in another district.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.