Too-long-didn’t-read version: A close look at the legislative history of the relevant statutes shows that voters can validly petition to put the demolition of a school building onto the ballot. Moreover, the contrary interpretation would apply not just to voter petitions but also to school board decisions, leading to the (absurd) conclusion that no one—not even a school board—has the power to demolish a school building. So I think the district should take a second look at the statutes in light of their legislative history. Now here’s the long version:
There are two key Iowa statutes that enable school districts to dispose of school property. For ease of reference, I’ll call them the “Petition Statute” and the “Board Statute.” The Petition Statute gives the voters the power to “direct the sale, lease, or other disposition of any schoolhouse” or other district property, via a petition process to put such an issue on the ballot. The Board Statute gives school boards the power to “sell, lease, or otherwise dispose of a schoolhouse” or other district property, and provides a procedure for doing so. The Hoover petition raises the issue of whether “disposing of” property under these statutes can include demolition.
To interpret the language of these statutes, it’s useful to know their history. Originally, the Petition Statute was the exclusive way for school districts to sell, lease, or dispose of property. (See this case at page 581 and this case at page 260.) This proved cumbersome, so the legislature passed the Board Statute, enabling school boards to dispose of school property without an election. An accompanying statute provided that the board’s power was “independent of” and “additional to” the voters’ power under the Petition Statute.
The co-existence of these two statutes inevitably raised questions. In 1979, the Iowa Attorney General’s Office stated in a formal opinion that the Petition Statute grants “a much broader and more flexible power which resides in the electors of the school district than that held by the board of directors. The policy behind the distinction is the fundamental democratic principle that the electors are entitled to hold more power,” and that the board’s power under the Board Statute was “much more restricted.” As a result, the opinion concluded that when the district sold a schoolhouse under the Board Statute, it faced restrictions on the use of the proceeds that it would not face under the Petition Statute.
The Decorah case
In 2007, another issue arose about the relationship between the two statutes. What if a school board voted to demolish a building, and then the voters filed a petition to lease that same building? The court in that case held that the voter petition was valid and that the election had to go forward, even though the school board had already voted to demolish the building.
It’s important to understand the basis for that court’s decision, which turned on a close examination of the language in the Petition Statute. At that time, the Petition Statute contained a clause stating that “nothing herein shall be construed to prevent the sale, lease, exchange, gift, or grant and acceptance” of any property under the Board Statute. The court read that clause to mean that if the school board voted, for example, to sell a school building, the voters could not then petition for some contrary use of that building. But the court noted that the statute applied that rule only to “sale, lease, exchange, gift, or grant and acceptance” of property, and not to other types of “disposition,” such as demolition. As a result, the court concluded, even after the school board had voted to demolish a schoolhouse, the voters could petition for a contrary use of the building.
On the way to reaching that conclusion, the court explicitly held that the word “dispose” in both statutes included “demolition.” (See page 7 of the decision.) That interpretation was consistent with a much earlier opinion by the Iowa Attorney General interpreting that same language to include demolition.
The 2008 amendments
In 2008, apparently in reaction to the Decorah case, a legislator from Decorah filed a bill to amend the two statutes. The legislative history shows that the intent was to give school boards more power to take independent action to dispose of school property, and to define and limit the power of the voters to challenge those decisions after the fact.
The 2008 amendments made three major changes:
First, the then-existing Petition Statute said that it was not intended to prevent the “sale, lease, exchange, gift, or grant and acceptance” of any property under the Board Statute. The amendment added the words “or dispose of” to that list. This addressed the anomaly that the Decorah court identified—but in a way that was more favorable to school boards.The thrust of the 2008 amendments was to rein in the Decorah court’s interpretation and to expand the power of school boards to act independently to dispose of school property.
Second, the amendments defined “dispose of” in both statutes to include “exchange, transfer, demolition, or destruction” of property.
Third, the amendments provided that once a school board had formally acted to “dispose” of a property, the voters could petition for a contrary use, but would have to do so within a limited time (one year). (The initial version of the bill had been even more restrictive of voters’ rights to challenge board dispositions of property, but those provisions were toned down by the time of passage.)
The 2009 amendments
The following year, a newly elected legislature amended the two statutes again. The changes show an intent to shift power from school boards back to the voters. The initial bill contained this explanation:
Currently, [the Petition Statute] specifies that the board of directors of a school district may take independent action to dispose of any interest in real or other property of the school district. Currently, “dispose” or “disposition” includes the exchange, transfer, demolition, or destruction of any real or personal property of the school district. The bill strikes this language.It also stated:
The bill returns the Code language to how it read prior to the [2008 amendments], except for technical changes, to allow voters to direct the disposition of school property and the application of the proceeds.(Emphasis added.)
The 2009 amendments made three changes:
They restored the Petition Statute to the way it read before the 2008 amendments. The relevant clause now reads “nothing in this section shall be construed to prevent the sale, lease, exchange, gift, or grant and acceptance of any interest in real or other property of the corporation to the extent authorized by [the Board Statute],” with the words “or otherwise dispose” stricken.The thrust of the 2009 amendments was to make it clear that the power to “dispose” of school property remains ultimately with the voters, even if the school board has made a contrary decision.
They deleted from both the Board Statute and the Petition Statute the sentence defining “dispose of” to include “exchange, transfer, demolition, or destruction.”
They shortened the time limit for filing a petition to change a board decision about property to ten days.
The legal issue
The Hoover petition asks to put the demolition of Hoover onto the ballot. If the demolition counts as “disposing” of a schoolhouse under the Petition Statute, and if the group submits enough signatures, the board is required to put the issue on the ballot. But if demolition does not count as “disposition,” then the board lacks the power to put the issue on the ballot.
The district’s lawyer provided a brief opinion that focused on the 2008 and 2009 amendments. Here is a summary of his reasoning: In 2008, the statute was amended to define “dispose” to include “exchange, transfer, demolition, or destruction” of a property. In 2009, the legislature deleted that definitional language. Therefore, “dispose” does not include demolition.
In light of the history of the statute, I think that conclusion is problematic, for several reasons.
- The argument identified by the district’s lawyer would lead to the conclusion that the school board itself lacks the power to demolish a school property. The board gets its power to dispose of school property from the Board Statute. Like the Petition Statute, the Board Statute was amended in 2008 to define “dispose” to include “exchange, transfer, demolition, or destruction.” And, like the Petition Statute, the Board Statute was amended in 2009 to delete that definitional language. If that means “dispose” no longer includes demolition, then the school board would have no power to demolish school buildings. It seems very improbable that the legislature intended to prevent school districts from ever demolishing any school buildings.
Notice that the legislature was careful to amend the two statutes together in both 2008 and 2009, implying that words “sale, lease, or dispose of” would be interpreted the same under each statute. It would be hard to argue that the words have a different meaning in one statute than they do in the other.
- It is important to interpret the statutory amendments in historical context. The 2007 Decorah court decision held that “dispose” included demolition and that the voters had the power to petition to change a school board’s decision to demolish a building. The 2008 amendments were a reaction to that decision, and they broadened the list of actions (including demolition) that school boards could take independently of the voters. The 2009 amendments, by contrast, shifted power back to the voters, “to allow voters to direct the disposition of school property.”
Viewed in that context, it is very hard to conclude that the 2009 amendments were intended to take the power to demolish buildings away from the voters.
- Prior to 2008, both the Decorah court and the state Attorney General’s office had interpreted the word “dispose” to include demolition of a building. If the 2009 legislature had wanted to omit demolition from the definition of “dispose,” it could have done so explicitly. Instead, it chose to delete the definition entirely and return the statute to its pre-2008 language—thus returning to the language that had already been interpreted to include demolition.
- If the term “dispose of” in the statute does not include exchange, transfer, demolition, or destruction, it’s not clear what meaning the term could have. Yet the statutes repeatedly use the term as separate from other terms such as “sale” and “lease.” To read all meaning out of the term would be inconsistent with the clear legislative intent “to allow voters to direct the disposition of school property.”
- The entire focus of the Decorah case, and of the legislative reactions to it, was on situations where a school board had already formally resolved to dispose of a building and voters had then petitioned for a contrary use. There is no indication that the legislature intended to change the power of the voters to initiate a sale, lease or disposition before the school board had acted. (In the Hoover situation, the board has not yet formally resolved to demolish the building under the statute.)
- There is a more plausible reason why the legislature would have deleted the definitional language from the statutes. The board’s power to “sell, lease, or dispose of” school property comes from section (1) of the Board Statute. But another part of the Board Statute—section (2)—provides that the board can “sell, lease, exchange, give, or grant, and accept” property to another governmental unit in some circumstances. If “dispose” in section (1) were defined to include “exchange, transfer, demolition, or destruction,” section (2) of the statute would become superfluous; the board would already have the power to transfer property to a governmental unit—or to anyone—under section (1).
It seems likely that the legislature did not want the board’s power to “dispose” of property to include the power to give away district property to entities other than the governmental units identified in section (2). Because that could have been the unintended consequence of the 2008 definitional language, it made sense for the 2009 legislature to delete that language. This would explain why legislators stated that the bill would “clean up” the 2008 changes.
(In my view, it may make sense to interpret the Petition Statute as referring exclusively to section (2) of the Board Statute when it says it can’t be used to prevent the board’s “sale, lease, exchange, gift, or grant and acceptance” of property. That language closely tracks the language of section (2). So when a board transfers property to another governmental unit, the voters can’t challenge that decision; but they can challenge sales and leases under section (1). The 2008 amendment inserting “or dispose of” into that language threw off that parallelism. By deleting those words in 2009, the legislature was returning to the language that tracked section (2). This is another way that the 2009 amendments would “clean up” the 2008 changes.
This would also explain why the 2009 legislature shortened the petition period to ten days. If it intended to allow voters to challenge not only demolitions but also sales and leases under section (1) of the Board Statute, the timeline for petitions would have to be shortened for practical reasons.)
If we get a petition from enough people—over 2,189—to put the Hoover demolition on the ballot, we need to be careful to respect the legal rights of those people. A close look at the history of the governing statutes shows that the 2009 amendments were meant to give the voters more power over the disposition of property, not less. Nothing in the legislative history indicates any intent to deprive the voters of the power to put the demolition of a schoolhouse onto the ballot, which both the state Attorney General and the Decorah court had previously recognized. And any such interpretation would imply that school boards, too, lack the power to demolish school buildings. For those reasons, I’d like the district to take a second look at the statutes in light of their legislative history.
Standard disclaimer: This post is not intended as legal advice. Moreover, I’m just trying to get my current thoughts in written form in time for our meeting tonight; I’m sure there is more to discuss that I haven’t covered. Please feel free to chime in with your own thoughts in the comments.