Request By:
Mr. Jim Wallace, Superintendent
Gallatin County Public Schools
Warsaw, Kentucky 41095
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General to render an opinion relative to whether it is possible, under KRS 160.040, for two county school districts to merge. It is the opinion of this office that such a merger may be effected under the provisions of this statute.
KRS 160.040, with its genesis dating back to the Kentucky Statutes as amended in 1912, provides as follows:
"Boards of education of any two (2) or more contiguous school districts may by concurrent action merge their districts into one (1). In case of merger the members of the boards of education of the merged districts may serve out the terms for which they were elected. The resulting district shall take over all the assets and legal liabilities of the districts joining in the merger. Tax levies authorized for the payment of interest and the retirement of bonds or to create sinking funds for such purposes shall continue to be levied and collected over the same area by or for the new board in accordance with the laws under which the levies were originally made until all bonded obligations of the old district have been retired."
The sentence of this statute of importance in responding to your question is the first one. Quite plainly the statute authorizes "any two (2) or more contiguous school districts" to merge into one school district. (Emphasis supplied.)
Research on the question you presented failed to produce any prior opinions from this office on the subject or any reported litigation. However, for purposes of reference and comparison, we note the opinion of the Kentucky Court of Appeals in Board of Education of Caverna Independent School District v. Butler, Ky., 256 S.W.2d 516 (1953). The problem before the Court was whether two contiguous independent school districts, portions of which were in different counties, could merge into a single new independent school district under the provisions of KRS 160.040. The Court in concluding a merger of this type was valid stated in part:
"The plain language of this statute, which says that boards of education of any two or more contiguous school districts may by concurrent action merge their districts into one, clearly includes the merger we are considering, and it must follow that unless there is some specific constitutional or other legal objection to this particular type of merger, then its validity must be upheld." 256 S.W.2d at page 517.
The Court went on to say that although such a merger might give rise to some questions of a fiscal nature, problems of that nature do not create unconstitutionality or invalidate the merger.
We wish to further note and compare the provisions of two other KRS Chapter 160 sections. KRS 160.041 specifically addresses the merger of an independent school district with a county school district. Certainly there can be no justification for concluding that this section implies that only independent and county school districts may merge. Also, while KRS 160.010 does provide in pertinent part that "each county in this state constitutes a county school district, " we do not believe this statute proscribes a merger of county school districts.
Lastly, for the purpose of an alternative consideration to merger of county school districts, we point out to you the provisions of KRS 158.100. In essence, this statute permits a county school district to contract with another school district for the providing of school service. See also KRS 157.280 concerning the providing of special education programs for exceptional children in the school district.