Under Arkansas Act 1507 of 2013, can a school district let community groups use its property or millage revenue without violating Article 14 of the state constitution?

Plain-English summary

State Representative Kelley Linck asked Attorney General Dustin McDaniel seven questions about how Act 1507 of 2013 and the Arkansas Supreme Court's decision in Kimbrell v. McCleskey, 2012 Ark. 443, affected the constitutional limits on what a school district may do with its property and its millage revenue. Act 1507 amended A.C.A. § 6-21-101 to expand the list of "community purposes" a school board could approve, and it declared that such community use was "an intended purpose for the use of school property under Arkansas Constitution, Article 14, § 2." The AG reaffirmed an earlier opinion (Op. Att'y Gen. 1999-417) holding that school property and school funds may be used for community purposes only within the bounds of Article 14. To reconcile Act 1507 with the constitution, the AG construed it narrowly: a school board has discretion to allow community use of school property only when that use does not interfere with educational activities and does not amount to an uncompensated depletion of district resources. Kimbrell, which held that a district may retain URT revenue in excess of foundation funding, did not enlarge what a district may do with those funds — Article 14, § 3 still dedicates all URT revenue to maintenance and operation of the schools.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the AG concluded, question by question

Q1: Does Act 1507 displace the conclusions in Op. Att'y Gen. 1999-417?
No. The AG read Act 1507 as merely listing illustrative community uses while leaving the underlying Article 14 constitutional limits in place. A school board cannot use Act 1507 to authorize uncompensated community use that depletes school resources or that interferes with the instructional day.

Q2: Does Kimbrell v. McCleskey enlarge a district's authority to use excess URT revenue for community purposes?
No. Kimbrell held that a district may retain URT revenue above the foundation-funding amount, but Article 14, § 3 still dedicates all URT revenue exclusively to maintenance and operation of the schools.

Q3: Where URT revenue exceeds foundation funding, is the district free to spend the excess on something other than M&O or debt service?
No. The AG explained that even where URT revenue produces a surplus locally, the constitutional dedication of those funds to M&O and debt service does not lift.

Q4: Would a district's use of millage revenue (other than the 25-mill URT) for a "joint use of school facilities" agreement under Act 1507 violate Article 14, § 2?
The AG read Act 1507 as authorizing only inbound payments (where another entity pays the district to use unused school facilities), not outbound expenditures. So Act 1507 itself does not "address" the kind of expenditure the question described. Any outside-Act-1507 joint-use spending of district funds would still need to satisfy the constitutional standard that any expenditure be "necessary" in the broad sense (convenient, useful, appropriate, suitable, proper, or conducive to maintaining the schools) and supported by adequate consideration.

Q5: Is a proposed millage with ballot language explicitly stating it will fund joint-use agreements under Act 1507 constitutional?
The AG declined to decide. Whether a particular ballot title passes muster is a fact-intensive question for a finder of fact. The AG repeated that Act 1507 itself does not authorize a direct expenditure of millage revenue on joint-use arrangements.

Q6: Did Amendment 74 of 1996 moot the discussion of Article 14, § 3 in Op. 1999-417?
No, "to no extent." Opinion 1999-417 was written after Amendment 74 and with full awareness of it.

Q7: For Article 14 purposes, does it matter whether millage revenue is characterized as local or state?
No. Following Kimbrell, the AG treated URT revenue as "a breed of [its] own" and held that regardless of label, all such revenue is subject to Article 14's restrictions.

Common questions

Q: What is the "URT" the opinion keeps mentioning?
The Uniform Rate of Tax: a 25-mill ad valorem property tax required under Ark. Const. art. 14, § 3(b)(1) and Amendment 74, levied statewide on all taxable real, personal, and utility property, with revenue dedicated to maintenance and operation of the schools.

Q: What was the holding of Kimbrell v. McCleskey?
The Arkansas Supreme Court held that a school district may retain URT revenue in excess of the foundation-funding amount the state owes that district. In other words, the state cannot divert one district's URT surplus to fund another district's foundation amount.

Q: Could a school district let a city use a school gym after hours for free?
The AG's answer was nuanced. A board has discretion under A.C.A. § 6-21-101 to allow community use, but if the use noticeably depletes school resources (wear and tear, utilities, supervision) without compensation, the board must charge enough to cover the cost. Anything else risks being an unconstitutional diversion of school funds under Article 14 and an illegal exaction under Article 16, § 13.

Q: What about a school district paying for improvements at a city park where school sports teams play?
The AG referenced his recent Opinion 2013-124 (the Russellville School District / city park question) for the standard: such an expenditure could be lawful if the board found it "necessary" in the constitutional sense, meaning convenient, useful, appropriate, suitable, proper, or conducive to maintaining the schools, and so long as the district received adequate consideration.

Background and statutory framework

Act 1507 of 2013 rewrote A.C.A. § 6-21-101 to authorize school boards to permit community use of "land or public school facilities" for social events, civic events, recreation, health and wellness activities, and lawful meetings. It declared this kind of community use to be an "intended purpose" of school property under Article 14, § 2. To offset costs, it authorized the district to charge a fee, accept grants, or enter into a joint use agreement with a public or private entity.

The AG flagged the Article 14, § 2 declaration as "problematic." Article 14 defines the schools' mission as education. A legislative declaration that community use is an intended purpose under the education article cannot, by itself, override the constitutional standard set out in cases like Gray v. Mitchell, 373 Ark. 560, 285 S.W.3d 222 (2008), and Little River County Bd. of Educ., 156 Ark. 549, 247 S.W. 70 (1923), which require school expenditures to be "immediately and directly connected with the establishment and maintenance of a common school system."

The AG also reiterated the deferential standard the Arkansas Supreme Court applies to school board discretion, citing Safferstone v. Tucker, Isgrig v. Srygley, Springdale Board of Education v. Bowman, and Leola School District v. McMahan. A school board's policy stands unless it is "arbitrary, capricious, or contrary to law," and the burden is on the challenger to prove abuse of discretion by clear and convincing evidence.

Citations

Statutes

• A.C.A. § 25-16-706 (AG opinion authority)
• A.C.A. § 6-21-101 (community use of school facilities, as amended by Act 1507 of 2013)
• A.C.A. § 6-13-620(a)(12) (school board powers)
• A.C.A. § 6-20-2305 (foundation funding amount per pupil)
• A.C.A. § 14-54-1307 (school district recreation programs)
• Ark. Const. art. 14, §§ 1, 2, 3 (the education article)
• Ark. Const. art. 16, §§ 3, 11, 13 (public funds, taxation, illegal exactions)
• Ark. Const. amend. 74 (1996)

Cases

• Kimbrell v. McCleskey, 2012 Ark. 443 (Arkansas Supreme Court)
• Gray v. Mitchell, 373 Ark. 560, 285 S.W.3d 222 (2008) (Arkansas Supreme Court)
• Little River County Bd. of Educ., 156 Ark. 549, 247 S.W. 70 (1923) (Arkansas Supreme Court)
• Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962) (Arkansas Supreme Court)
• Isgrig v. Srygley, 210 Ark. 580, 197 S.W.2d 39 (1946) (Arkansas Supreme Court)
• Springdale Board of Education v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987) (Arkansas Supreme Court)
• Leola School District v. McMahan, 289 Ark. 496, 712 S.W.2d 903 (1986) (Arkansas Supreme Court)

Prior AG opinions referenced

• Op. Att'y Gen. 1999-417, 2013-124, 2013-155, 2012-060, 2000-270, 2013-124

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2014-008

April 28, 2014

The Honorable Kelley Linck
State Representative
13823 Highway 148
Yellville, Arkansas 72687-7848

Dear Representative Linck:

I am writing in response to your request for my opinion on the following questions:

1. To what extent, if any, does the passage of Act 1507 of 2013 impact the discussion and conclusions reached in Op. Att'y Gen. No. 1999-417?

2. To what extent, if any, does the Arkansas Supreme Court's decision in Kimbrell v. McCleskey, 2012 Ark. 443 (Nov. 29, 2013), impact the discussion and conclusions reached in Op. 1999-417?

3. Does the Kimbrell decision render art. 14, sec. 2 of the Arkansas Constitution moot in school districts where the revenue from the twenty-five mills exceeds the state per student funding because all such funds are local?

4. Would a school district's use of funds gained from a millage over and above the required twenty five mills for joint use of school facilities pursuant to Act 1507 violate art. 14, sec. 2 of the Arkansas Constitution?

5. Would a school district's proposed millage with language explicitly stipulating that the funds would be used for joint use of school facilities pursuant to Act 1507 violate the Arkansas Constitution?

6. To what extent, if any, does the passage of Amend. 74 of 1996 render moot the discussion and conclusions reached in Op. 1999-417 regarding art. 14, sec. 3 of the Arkansas Constitution?

7. For the purposes of art. 14, secs. 2 and 3, and art. 16, sec. 3, is the constitutionality of the provisions of Act 1507 dependent upon whether the origin of the funds spent are local or state?

RESPONSE

With respect to your first question, my predecessor in Opinion 1999-417 concluded that school property may be used for "community purposes" only to the extent permitted by statute and only then under restrictions imposed by constitutional mandate. In my opinion, Act 1507 cannot properly be read as affording school districts an unrestricted right to allow the uncompensated use of school district property for non-district purposes. Rather, in order to harmonize the statute with constitutional mandates, it must be read as affording districts discretion to allow use of its property for purely "community purposes" only when such use neither conflicts with district educational activities nor results in an uncompensated depletion of district resources. Thus read, in my estimation, the statute does not conflict with Opinion 1999-417.

With respect to your second question, under Kimbrell v. McCleskey, a school district may "retain any URT [uniform-rate-of-tax] revenues in excess of the foundation-funding amount" generated from property taxation. Given the general focus of your request, I take your particular question to be whether a school district may devote such revenues to "community purposes" of a sort other than those described in Opinion 1999-417 as falling within constitutional and permissible statutory restrictions. In my opinion, the answer to this question is "no."

I will paraphrase your third question as follows: Once the state has met its obligation to provide foundation funding sufficient to afford a district's K-12 students a "general, suitable and efficient system of free public schools," is the district free to expend what you term "local" URT revenues realized above the foundation-funding amount on some purpose other than the M&O expenditures and debt service prescribed in Article 14? In my opinion, the answer to this question is "no."

With respect to your fourth question, Act 1507 focuses only upon a type of "joint use" agreement that would allow any of the listed entities, in exchange for a negotiated payment, to use school facilities not needed for immediate and exclusive educational use. The monetary consideration involved in such an arrangement would flow to the school district, not from it. Act 1507 thus does not address a direct district expenditure from millage revenues of the sort described in your question. Any joint-use agreement falling outside the scope of Act 1507 that indeed involved an expenditure of district funds would need to serve a proper educational purpose and be supported by adequate consideration.

With respect to your fifth question, only a finder of fact acquainted with the ballot title and attendant circumstances could determine the propriety of a "proposed millage" of this sort. I will repeat, however, that Act 1507 does not address a joint-use agreement that would involve a direct expenditure of district millage revenues.

The answer to your sixth question is "none." The answer to your seventh question is "no."

Question 1: To what extent, if any, does the passage of Act 1507 of 2013 impact the discussion and conclusions reached in Op. Att'y Gen. No. 1999-417?

This question is very broadly phrased and hence difficult to interpret. I can opine, however, that the essential conclusions set forth in my predecessor's opinion continue to apply in the wake of Act 1507's enactment. The opinion simply declares that a school district may devote its property to "community purposes" only to the extent permitted by statute and, ultimately, by certain constitutional restrictions on the use of school resources. This declaration is without question correct. Act 1507 does not conflict with these conclusions so long as its grant of school-board discretion is narrowly read to accord with the constitutional restrictions discussed below.

For reasons that should become apparent in the ensuing discussion, I will here reproduce Act 1507 in its entirety, showing the marked amendments of prior law as indicated in the act itself:

For An Act to Be Entitled

AN ACT TO AMEND THE ARKANSAS CODE CONCERNING THE USE OF PUBLIC SCHOOL FACILITIES FOR COMMUNITY ACTIVITIES; TO PROMOTE THE PUBLIC HEALTH AND WELL-BEING OF SCHOOL COMMUNITIES; AND FOR OTHER PURPOSES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

SECTION 1. Arkansas Code § 6-21-101 is amended to read as follows:

6-21-101. Authority to permit use of public school buildings for community purposes.

(a) The General Assembly finds that the use of a public school facility under this section:

(1) Promotes the education, health, and well-being of the communities where schools are located; and

(2) Is an intended purpose for the use of school property under Arkansas Constitution, Article 14, § 2.

(b)(1) The board of directors of any school district may permit members of the community to use land or public school facilities owned or operated by the school district for a community purpose, including without limitation:

(A) A social event;
(B) A civic event;
(C) Recreation;
(D) Health and wellness activities; and
(E) A lawful meeting of the citizens of the community.

(2) Community activities permitted at school facilities or on school land shall not interfere with an instructional day at the school where the community activities are held.

(c) To offset the cost of community use of school land or a public school facility, a school district may:

(1) Charge a fee;
(2) Accept gifts, grants, and donations from private sources, from municipal and county governments, from the state, and from the federal government; or
(3) Enter into a joint use agreement with a public agency, public entity, private entity, or nonprofit organization, for shared use and responsibility of the school land or public school facility.

This legislation is noteworthy for purposes of my discussion in the following respects:

1. It authorizes a school district to use its real property for general "community purposes" without expressly requiring that those community activities themselves directly benefit a district's K-12 pupils.

2. It broadens the scope of school facilities that may be used for "community purposes" from "the public schoolhouse" to "land or public school facilities owned or operated by the school district."

3. It declares that using school property for "community purposes" not only promotes the general "education, health, and well-being of the communities where schools are located" but further fulfills a specifically "intended purpose for the use of school property under Arkansas Constitution, Article 14, § 2."

4. In order "to offset the cost" of such "community use," it authorizes any school district to enter into a "joint use agreement" with any "public agency, public entity, private entity, or nonprofit corporation."

5. With the possible exception of usage associated with a "joint use agreement," it leaves to the discretion of the school board whether to charge for allowing school property to be used for a "community purpose."

You have asked whether legislation having these effects in any sense qualifies the opinions set forth in Op. Att'y Gen. No. 1999-417, which addressed, inter alia, the restrictions on the use of school property imposed by Ark. Const. art. 14, § 2.

Specifically bearing upon your current request, my predecessor addressed the following question:

To what extent does Article 14, § 2 of the Arkansas Constitution apply to organizations that wish to avail themselves of school property, such as classrooms, the cafeteria, the gymnasiums, and various ball fields? Would a charge equivalent to fair rental use satisfy the constitutional provision?

Article 14, § 2 provides that "[n]o money or property belonging to the public school fund, or to this State for the benefit of schools or universities, shall ever be used for any other than for the respective purposes to which it belongs." My predecessor initially established in his discussion that the standard controlling the use of district resources under this provision is the same as that applicable under Article 14, § 3, which mandates, inter alia, that taxes levied for maintenance and operation of the schools ("M&O") be used exclusively for that purpose. Accordingly, he concluded:

It is my opinion that whether or not Article 14, § 2 applies, a school board can allow non-school organizations to use school property such as classrooms, the cafeteria, the gymnasiums, and various ball fields, if, in the judgment of the school board, that organization's use of the property is lawful and is consistent with the efficient operation of the school. In this regard, I must note that the board will be constrained by constitutional requirements such as the prohibition against illegal exactions. See Ark. Const., Art. 16, § 13. For this reason, it may be appropriate, depending upon the circumstances, for the board to impose a charge for the use of school property. It would be advisable for the school board to develop and implement a facilities use policy.

In concluding that the use of school facilities must be "lawful" and "consistent with the efficient operation of the school," my predecessor was merely acknowledging that statutory and constitutional provisions will serve as a check on the nevertheless considerable discretion available to a school board in the exercise of its responsibilities. I fully agree with my predecessor's statement of the law, which acknowledges both the general constitutional condition that "no money arising from a tax levied for any purpose . . . be used for any other purpose" and the statutory mandate, which implements Article 14, restricting a school board's actions to ones "necessary and lawful for the conduct of efficient free public schools in the district."

With respect to statutory restrictions, my predecessor based his conclusions in part upon the pre-Act 1507 version of A.C.A. § 6-21-101(b), which read as follows:

The directors of any school district may permit the use of the public schoolhouse for social, civic, and recreation purposes or any other community purpose, including any lawful meetings of its citizens, provided such meetings do not interfere with the regular school work, and the directors may make a charge therefor if they deem it proper to do so.

Act 1507 expands this statute in part by itemizing illustrative uses that a school board might approve for "community purposes." This change, however, marks only an elaboration of the standard applicable prior to the amendment. In both its pre- and post-amendment forms, the statute grants a school board the discretion to approve the use of school property for a "community purpose." The amendment further does not substantively alter the provision that any approved community activity not interfere with "the regular school work" (pre-amendment version) or "an instructional day" (post-amendment version). Given this consistency in the statute before and after its amendment, I see no need to offer any material qualification of my predecessor's conclusions. Now, as before the enactment of Act 1507, the statute leaves it to a school board's discretion, which will necessarily be bounded by constitutional imperatives, to determine whether to charge for use of school resources for "community purposes."

With respect to the issue of school-board discretion, any unqualified suggestion that school property might be used for "community purposes" appears inconsistent with the constitutional directive that such property be used primarily to benefit the district's students. In my opinion, it would be clearly impermissible, for instance, simply to dedicate school property to an exclusively "community purpose." As suggested by my predecessor, it would further be impermissible for a school board to exercise its discretion by allowing any gratuitous use of school property that results in appreciable deterioration of resources financed on the express representation that they would be used for school purposes. This consideration doubtless prompted my predecessor to remark that a school board's discretion remains bounded by constitutional considerations that may indeed require the board to "charge for the use of school property." It may further have prompted the legislature itself to provide for various means to "offset the cost" of community use, a provision that only complements the legislature's insistence that "community activities" never "interfere with an instructional day at the school where the community activities are held."

In summary, I believe my predecessor correctly concluded that community use of school property, while not in itself constitutionally offensive, can neither be permitted to interfere with the normal functioning of district educational activities nor be made available without recouping any appreciable cost the district might incur as a result of such use. Under Act 1507, it lies within the discretion of a school board to determine both when a community use is constitutionally permissible and when a community user must pay for such use. Having ventured this opinion, I note that no court has yet directly addressed this issue.

Question 2: To what extent, if any, does the Arkansas Supreme Court's decision in Kimbrell v. McCleskey, 2012 Ark. 443 (Nov. 29, 2013), impact the discussion and conclusions reached in Op. 1999-417?

Kimbrell v. McCleskey stands primarily for the proposition that a school district may "retain any URT revenues in excess of the foundation-funding amount" generated from property-tax revenues. Your rather obscure question appears to be whether a school district's retention of such excess revenues empowers it to devote those revenues to "community purposes" — including, presumably, community use of real property bought with such revenues — without being subject to the statutory and constitutional restrictions discussed in Opinion 1999-417.

In my opinion, the answer to this question is "no." The fact that a school district controls its excess property-tax revenues does not in any sense enlarge its discretion regarding the permissible uses of those revenues. As the court noted in Kimbrell regarding property-tax variations that lead to excess revenues in some districts:

[V]ariations were clearly contemplated and are explicitly permitted under the plain language of art. 14, § 3, Const. art. 14, § 3(a) ("It is recognized that, in providing such a system, some funding variations may be necessary. The primary reason for allowing such variations is to allow a school district, to the extent permissible, to raise additional funds to enhance the education system within the school district.")

As reflected in the highlighted portion of this parenthetical, as a matter of constitutional law, even excess revenues held by a school district must be devoted to the task of educating the district's students. Although such expenditures may incidentally benefit parties other than the district's students, in my opinion, the primary purpose of all excess amounts realized in a district is the same as the foundation funding amount, namely, to benefit the district's pupils. I am only reinforced in this conclusion by the fact that both excess URT revenues and additional mills levied pursuant to Amendment 74 are expressly pledged to district operations, meaning that their diversion to other purposes would be subject to challenge as an illegal exaction in contravention of Ark. Const. art. 16, §§ 11 and 13.

In recognition of this fact, my predecessor opined that, notwithstanding statutory language that suggests otherwise, a school district may lack the discretion to devote its resources, including ones funded by excess revenues, to advancing "community purposes" without charging a fee for such use. I fully agree with this conclusion.

Question 3: Does the Kimbrell decision render art. 14, sec. 2 of the Arkansas Constitution moot in school districts where the revenue from the twenty-five mills exceeds the state per student funding because all such funds are local?

This question is likewise cryptic to a point that renders it hard to paraphrase. I will again assume that your reference to "art. 14, sec. 2" is to the general standard restricting the use of district resources under Article 14. Starting from this assumption, for purposes of discussion, I will reword what I take to be your question as follows: Once the state has met its obligation to provide foundation funding sufficient to afford a district's students a "general, suitable and efficient system of free public schools," is the district free to expend what you term "local" URT revenues realized above the foundation-funding amount on some purpose other than the M&O and debt service expenditures prescribed in Article 14? In my opinion, the answer to this question is "no."

Although it does not bear on my conclusions, I must initially question your suggestion that district revenues arising from the 25-mill URT in excess of foundation funding are "local." The majority in Kimbrell rejected as follows the proposition that the URT is either a "state" tax or a "local" county tax:

Clearly, the URT is not a county tax, but further absent is any suggestion whatsoever that it is a state tax. To the contrary, both the General Assembly and this court seem to have recognized school taxes as a breed of their own that are neither state nor local.

For purposes of your question, however, I consider it immaterial whether one characterizes excess revenues as either "state," "local" or, as the Kimbrell majority phrased it, "a breed of their own." Regardless of how they are characterized, URT revenues are expressly and exclusively pledged to maintenance and operation of the schools. Article 14 is unequivocal on this point:

There is established a uniform rate of ad valorem property tax of twenty-five (25) mills to be levied on the assessed value of all taxable real, personal, and utility property in the state to be used solely for maintenance and operation of the schools.

Kimbrell at no point supports a suggestion that this constitutional mandate is restricted to URT revenues devoted to foundation funding. The opinion addresses only whether excess URT revenues generated in a particular district may be used for M&O exclusively in the generating district or, alternatively, whether the state may divert the excess to another district in order to meet its foundation-funding target for M&O in that district. In the face of trenchant (and, to my mind, persuasive) dissents, the majority ruled that no such diversion by the state is legally permissible. This holding in no way calls into question the dedication under Article 14 of all URT revenues, regardless of how they are classified and including revenues above the foundation-funding amount, to M&O.

Question 4: Would a school district's use of funds gained from a millage over and above the required twenty five mills for joint use of school facilities pursuant to Act 1507 violate art. 14, sec. 2 of the Arkansas Constitution?

As in my response to your previous questions, I will assume that your reference to "art. 14, sec. 2" is to the general standard restricting the use of district resources under Article 14.

As noted in my response to your first question, Act 1507 amended A.C.A. § 6-21-101 to add subsection (c), which authorizes a school district "[t]o offset the cost of community use of school land or a public school facility" by entering into "a joint use agreement with a public agency, public entity, private entity, or nonprofit organization, for shared use and responsibility of the school land or public school facility." In my opinion, subsection (c) in no way contemplates a school district's directly expending funds from revenues realized from a millage "over and above" the URT. On the contrary, on its face, this subsection deals exclusively with the permissible uses of existing district realty, not with the disposition of millage funds collected in excess of the URT. With respect to "joint use" agreements, then, Act 1507 appears to do no more than expressly recognize a school district's authority to enter into a contractual agreement pursuant to which the entities might use school facilities, presumably when not needed for educational use, in exchange for a negotiated payment. The monetary consideration in such an instance would flow to the school district, not from it. In my opinion, then, Act 1507 simply does not address an expenditure of the sort you describe.

I do not mean to suggest in the foregoing that a school district is necessarily foreclosed from committing to expenditures in connection with a joint-facilities enterprise undertaken with entities of the sort referenced in the statute. This office has recently entertained this possibility, for instance, in addressing the constitutionality of a proposed agreement whereby the Russellville School District would commit to finance certain improvements to a municipal park in consideration of the city's agreeing to the District's conducting athletic competitions in the park. In that opinion, I concluded that a school board, in the exercise of its considerable discretion, could incur such an expenditure if it qualified as "necessary" in the constitutional sense of "convenient, useful, appropriate, suitable, proper or conducive to the proper maintenance of the schools." I believe the same standard would apply in reviewing any expenditure from Article 14 mills "over and above" the URT, subject only to the qualifier that Article 14, § 3(c)(1) expressly authorizes using millage funds in excess of the URT for both M&O and debt service.

Question 5: Would a school district's proposed millage with language explicitly stipulating that the funds would be used for joint use of school facilities pursuant to Act 1507 violate the Arkansas Constitution?

Determining whether a "proposed millage" of the sort referenced in your question accords with constitutional restrictions would in each instance entail reviewing the text of the ballot and all the attendant circumstances. Not being a finder of fact, I am neither situated nor authorized to conduct any such inquiry. Furthermore, I must repeat that Act 1507 does not contemplate a joint-use agreement by a school district that would involve expending district funds raised by a millage. With respect to the appropriate "joint use" of school-district tax revenues, see my response to your previous question.

Question 6: To what extent, if any, does the passage of Amend. 74 of 1996 render moot the discussion and conclusions reached in Op, 1999-417 regarding art. 14, sec. 3 of the Arkansas Constitution?

To no extent. Opinion 1999-417 was issued well after, and with full awareness of, the passage of Amendment 74, which is incorporated into the provisions of Article 14 discussed above. I fully concur with my predecessor's conclusions.

Question 7: For the purposes of art. 14, secs. 2 and 3, and art. 16, sec. 3, is the constitutionality of the provisions of Act 1507 dependent upon whether the origin of the funds spent are local or state?

As an initial matter, I must note that it is unclear what you intend by your reference to Ark. Const. art. 16, § 3, which bars state officials from diverting or "making a profit out of public moneys." I will assume you intended to refer to Ark. Const. art. 16, § 13, which bars illegal exactions.

Subject to the assumption just stated, in my opinion, the answer to your question is "no." As discussed above, for purposes of determining how funds subject to Article 14 might be used, it is immaterial whether one characterizes the funds as "local," "state" or "a breed of their own." In my opinion, all such funds are subject to the restrictions discussed above.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN MCDANIEL
Attorney General

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