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School Board gets answer on county ownership of school property - again

Question asked and answered six years ago by Attorney General’s opinion

A Virginia Attorney General’s opinion confirmed the legality of the King George Board of Supervisors’ right to retain the deed to school property and lease it to the School Board for educational purposes.  
That was back in May 2003.  
The May 2003 Attorney General’s opinion was expressly written at the request of King George County Attorney Matt Britton six years ago when the School Board baulked the last time it was presented with a lease to execute by the county.  
The question had arisen in early 2003 at a School Board meeting after the county purchased the property on which it subsequently built Sealston Elementary School and constructed a sports complex.
It was déjà vu all over again to hear the latest discussion questioning the ownership of school property by the county.  That took place a month ago at the School Board’s most recent regular meeting, on April 8.
That’s when the School Board questioned the legality of the county to retain ownership of the new high school and the property on which is located.  
Some things had changed in the intervening six years.  Payne Kilbourn, Lynn Pardee and Renee Parker have since been elected to the School Board.
But Sherrie Allwine is the chairperson, as she was in 2003, Dennis Paulsen was on the School Board then, as now, and Candace Brown is still division superintendent.
The proposed lease for the new high school appeared on the agenda at the April meeting as a discussion item.  The lease, included in the meeting packet, had been drafted by Britton in his role as county attorney.  Britton is also the county’s Commonwealth’s Attorney.
In presenting the topic, Brown reminded the School Board that the previous two schools constructed in the county, King George Elementary School and Sealston Elementary School, are both owned by the county and leased to the School Board.
Pardee, who is an attorney in private practice, questioned the legality of that arrangement, saying, “When you read state law, it certainly reads that school property shall vest with the School Board.  So I am a little confused why we are leasing this at all, since we should be the owners of the property.”
Kilbourn concurred with Pardee, saying, “I kind of agree with Ms. Pardee, here.  When I look at the ‘tenancy in common’ provision in the statute it says, yes, you can do a tenancy in common, but only for the term of such financial obligation.  In other words, it seems to me that the lease should at least terminate when the debt is paid off and then it vest directly to the School Board, and I don’t see that provision anywhere in here.”
Pardee inquired, “What if we don’t sign it, what if we don’t execute this lease, will it mean we can’t get to use it next year?”
Kilbourn responded, “It seems like we have to agree to it.  Then we fall back on this other thing that says title to all property vests with the School Board.”
Parker said, “I am interested in getting some answers, maybe some clarification from Mr. Britton on this.  Maybe that would help.”
Brown noted that it would likely be a conflict of interest for Britton since he is acting as the county attorney.  She added, “We would need to go to a private attorney.”
Kilbourn noted, “I get very concerned about this. The state law and the case law is very, very clear that as a separate body tasked to oversee public education in counties in Virginia, the School Board should have certain levels of independent authority and not be subject to control by the governing body.  And this is a perfect example of that.  I would almost turn the question around.  What do we gain by having the lease?  Similar to what Ms. Pardee brought up earlier.  Why even do it?”
Pardee said, “Actually, it’s the state constitution that vests the power in a local School Board to determine what the best use is of school property.  So if the School Board feels that the high school is best used as a middle school, that’s up to the School Board and not up to the county Supervisors.”    
Kilbourn persisted, “I really think you could make the legal argument that by signing this we are not complying with our duties under the state constitution because we are basically saying no, the Board of Supervisors will dictate to us what they think is best and not what we think is best.”
Chairperson Allwine said, “I am hearing from two of you that you want it reviewed by an attorney.”
Paulsen had previously in the meeting said, “I would be all for having somebody look at this lease and see if it is against state statutes.”  
He reiterated that Britton should be asked to do that, adding, “Let’s be specific about what we want him to look at, not the clauses of the lease, but the legality of the lease for us.”
Six years ago, when the lease for the Sealston property came forward, Paulsen had also questioned the arrangement, saying, “We should have the deed to any land our schools are on.”  
Subsequent closed sessions were held by both boards for legal briefings on the topic, which resulted in the request by Britton for the official legal opinion from the state’s Attorney General.
Parker questioned a clause in the proposed lease that states, “This lease shall automatically terminate six months from the end of the school year following any year in which notice is given by the School Board to the county that it no longer intends to use the property for educational purposes as a public high school; and shall terminate automatically and immediately if the property ceases to be used for educational purposes as a public high school.”
The next clause notes that if the lease is terminated for any reason, that “all buildings, improvements, equipment and fixtures not removed from the property shall become immediately the sole property of the county without notice or recourse by the School Board, or cost, of any kind to the county.”
Parker wanted to know how those clauses related to the middle school building, which is being vacated after school ends next month in June, with no plans for future use.  
This fall, middle school students will be shifted to the old high school building, which is to become the county’s single middle school.  
Allwine fielded Parker’s question, saying, “They don’t own the middle school.”  She added, “I think that is specifically in there because of the Ralph Bunche situation.”
Allwine is correct that the Board of Supervisors started retaining ownership of property purchased for schools as a reaction to the School Board’s 10-year refusal to turn over the Ralph Bunche building.  
The School Board vacated Ralph Bunche in June 1998 and only voted to turn the deed over in February of this year.
Regarding the soon-to-be-vacated middle school building, Brown wrote to County Administrator Travis Quesenberry in March, saying, “The School Board has indicated that they would like to make it available to the community to use for various activities rather than have it set empty.  Do you need any temporary space??  We probably need to do it on a year to year basis because at some time we will really need to put students back into the building.”
~ LEGAL OPINION ELEMENTS    An Attorney General’s official advisory opinion, dated May 22, 2003, addressed the topic of King George County ownership of school property.  
The three-page opinion was written by former Attorney General Jerry Kilgore, which reconciled at least two separate sections of law, which appeared to contradict each other.  
Kilgore said Section 22.1-125(A), requiring a school board to hold title in its name to the property that it owns, is not applicable under the questioned arrangement.  
Kilgore said to interpret that section as prohibiting a school board from holding anything but exclusive title to property nullifies the power given to school boards in Section 22.1-129(B).  That section of Virginia Code expressly grants a school board the authority to lease real estate.  
Kilgore also noted a previous Attorney General’s opinion determining that Section 22.1-129(B) authorizes a school board to enter into long-term leases and to enter into a lease-purchase agreement with a private entity for real estate, including a school building.

 Phyllis Cook, Staff Reporter

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