Does an Arkansas law requiring consolidated school districts to donate or lease unused buildings to charter schools and other entities apply to districts consolidated before 2013?

Plain-English summary

Representative Chris Richey asked about A.C.A. § 6-21-108(b)(3), enacted as Act 318 of 2013. That subsection says: if a consolidated school district's real property is still not in use for educational purposes and has not been sold, preserved, leased, or donated two years after the effective date of consolidation, the district must make the property available, by donation or low-cost long-term lease, to certain entities (a publicly supported institution of higher education, technical institute, community college, not-for-profit organization, county, or city) for limited purposes.

Question 1 asked whether the subsection reaches a school district that was consolidated before 2004 (and so well before the statute's 2013 effective date). AG Dustin McDaniel answered no. Subsection (b)(3) by its terms applies only to consolidated districts in the present tense, and Arkansas follows the general rule that statutes are construed prospectively unless retroactive intent is expressly declared or necessarily implied. The opinion walks through three scenarios:

• Scenario 1 (purely prospective): consolidation and the two-year window both occur after the 2013 effective date. Statute clearly applies. Not at issue.
• Scenario 2 (the asked scenario): consolidation and the two-year window both occurred before 2013. Applying the statute here would be retroactive, and there is no statutory indication of retroactive intent. The AG read the present-tense statutory language ("is not used by the school district") as confining application to two-year windows that elapse after the statute's effective date.
• Scenario 3 (mixed): consolidation pre-2013, but the two-year window elapses after the statute's effective date. The AG distinguished this scenario but did not formally decide it.

Question 2 asked whether any state law expressly requires a school district to sell, lease, or donate a building to a charter school. The AG answered no in the unconditional sense, but yes in a limited sense: subsection (b)(3), when its three threshold conditions are met (the time condition, the use condition, and the disposition condition), requires donation or low-cost long-term lease to a limited pool of entities. One of those entities is a not-for-profit organization, which can include a charter school qualifying under A.C.A. § 6-23-103(5)(D) (i.e., an organization that has applied for tax-exempt status under § 501(c)(3)).

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.

Common questions

What is the difference between strong and weak retroactivity in this opinion?
A strongly retroactive statute purports to change the past legal effect of an act as of a date before the statute's effective date. A weakly retroactive statute changes the past legal consequences of past actions starting at the statute's effective date but going forward. The AG concluded subsection (b)(3) is neither, because the statutory text does not reference events occurring before its effective date and uses the present tense.

Could a school district that was consolidated before 2013 still ever be subject to subsection (b)(3)?
The opinion does not formally decide this (the AG flagged it as Scenario 3), but the analysis suggests that if the two-year window had not yet elapsed when the statute took effect, the statute would arguably apply at the moment that window elapsed. That is a different question than the one asked, and the AG framed it as illustrative rather than answered.

Which charter schools count as not-for-profit organizations under § 6-23-103(5)(D)?
The cross-reference says an organization is eligible for a charter if, among other things, it has applied for tax-exempt status under § 501(c)(3) of the Internal Revenue Code. Charters granted to entities that meet this definition are within the "not-for-profit organization" entity-pool of subsection (b)(3).

What are the three threshold conditions in subsection (b)(3)?
(1) Time condition: at least two years after the effective date of consolidation. (2) Use condition: the real property is not used by the school district for educational purposes. (3) Disposition condition: the property has not been sold, preserved, leased, or donated. All three must be met for the donation-or-lease obligation to trigger.

Background and statutory framework

A.C.A. § 6-21-108 governs sale, lease, or donation of school property by school districts. Subsection (b)(3), codified from Act 318 of 2013, narrows the disposition options for consolidated districts whose properties have lain unused for two years.

The retroactivity analysis follows established Arkansas doctrine: statutes are construed as prospective unless retroactive intent is expressly declared or necessarily implied. The AG cited Aluminum Co. of America v. Neal for that rule. The strong/weak retroactivity taxonomy used in the opinion is drawn from federal and state court decisions and from Stephen Munzer's 1982 Texas Law Review article on retroactive legislation. The AG used present-tense statutory language as a textual indicator of prospective-only intent.

On charter schools, the eligibility cross-reference (§ 6-23-103(5)(D)) confirms that some charter schools (those organized as not-for-profits applying for § 501(c)(3) status) fall within the "not-for-profit organization" category of subsection (b)(3)'s entity pool. Other entity types in that pool (publicly supported institutions of higher education, technical institutes, community colleges, counties, cities) are not charter schools.

Citations

• A.C.A. § 6-21-108 (sale, lease, or donation of school property)
• A.C.A. § 6-21-108(b)(3) (consolidated districts: donate or lease unused property to limited entity pool)
• A.C.A. § 6-23-103(5)(D) (Repl. 2013) (eligibility of organizations for charter)
• A.C.A. § 6-23-301 et seq. (charter schools)
• Act 60 of 2004 (consolidation legislation referenced in the question)
• Act 318 of 2013 (enacted subsection (b)(3))
• Aluminum Co. of America v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982) (statutes prospective unless retroactive intent expressed)
• Bowen v. Georgetown Univ. Hospital, 488 U.S. 204 (1988) (Scalia, J., concurring) (primary/secondary retroactivity)

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. 2014-075

November 4, 2014

The Honorable Chris Richey
State Representative
Post Office Box 2356
West Helena, Arkansas 72390-0356

Dear Representative Richey:

You have requested my opinion regarding a newly revised section of the Arkansas Code. Section 6-21-108 addresses the sale, lease, or donation of school property by school districts. You ask two questions about subsection 6-21-108(b)(3):

1. Does the language in the statute apply to school districts that have not been involved in a consolidation since Act 60 [of 2004] and are not "consolidated districts"?

2. More broadly stated, is there any provision in state law that requires a school district to sell, lease, or donate a building to a charter school?

RESPONSE

I take your first question to be asking whether this subsection applies to a school district that was consolidated before Act 60 of 2004. So understood, the answer to your question is "no." The answer to your second question is that, while no statute expressly requires an unconditional donation or lease of public-school property to a charter school, the statute you ask about requires (under certain conditions) the donation or lease of certain property to a limited pool of entities, which includes certain kinds of charter schools.

DISCUSSION

Because your questions both relate to subsection 6-21-108(b)(3), which is the codification of Act 318 of 2013, it will be helpful to have that subsection before us in its entirety:

If two (2) years after the effective date of consolidation the real property of the consolidated school district is not used by the school district for educational purposes and has not been sold, preserved, leased, or donated, the school district board of directors shall make the real property available to a publicly supported institution of higher education, a technical institute, a community college, a not-for-profit organization, a county, or a city, by donation or low-cost long-term lease, for the following limited purposes:

(A) Having the real property preserved, improved, upgraded, rehabilitated, or enlarged by the donee;

(B) Providing a publicly supported institution of higher education, a technical institute, or a community college with the donated property in which to hold classes; or

(C) Providing community programs and beneficial educational services, social enrichment programs, or after-school programs.

Question 1: Does the language in the statute apply to school districts that have not been involved in a consolidation since Act 60 [of 2004] and are not "consolidated districts"?

By its own terms, subsection -108(b)(3) only applies to consolidated school districts: "If two (2) years after the effective date of consolidation the real property of the consolidated school district is not used. . . ." Because your question refers to a district that has "not been consolidated since Act 60 of 2004," I assume you are asking about a school district that has been consolidated before 2004. So understood, the answer to your question is "no." [Footnote: If you are asking whether subsection -108(b)(3) applies to a school district that has never been consolidated, then the answer is plainly "no." This is because, as noted above, subsection -108(b)(3) only applies to a school district that has been consolidated.]

The statute only applies when, among other things, two years has elapsed since the district's consolidation date. Thus, the statute (which was enacted in 2013) requires us to locate the effective date of the district's consolidation, add two years, and then ask whether the school is being used in the manner described in the statute. So there are three dates at issue under the statute: (1) the statute's effective date, 2013; (2) the district's consolidation date; and (3) the lapsing of two years after the consolidation date. A review of the three possible ways these dates relate to each other will be useful to resolving your question:

• Scenario 1: The consolidation date and the lapsing of the two-year window each occur after the effective date of subsection -108(b)(3), which was enacted in 2013. All would agree that this scenario is a prospective application of subsection -108(b)(3). This scenario is not at issue in this opinion.

• Scenario 2: The consolidation date and the lapsing of the two-year window each occurred before subsection -108(b)(3)'s 2013 effective date. If subsection -108(b)(3) were to apply in this scenario, the statute would be retroactive. This is precisely the scenario you ask about. For the reasons explained below, there is no reason to read the statute as applying in this scenario.

• Scenario 3: The consolidation date occurred before the statute was enacted, but the lapsing of the two-year window occurred after the statute was enacted. If the statute applied in this scenario, it would not be a retroactive application because the triggering event for the statute's application, i.e., the lapsing of the two-year window, occurred after the statute's effective date. Though this opinion does not directly deal with this scenario, I mention it because it sheds some light on the nature of retroactivity.

Your question deals with Scenario 2, above. If subsection -108(b)(3) applied to a school district that consolidated more than years ago, then the subsection would be retroactive. As a general rule, "statutes are to be construed as having a prospective operation, unless the purpose and intent of the Legislature to give it retrospective effect is expressly declared or is necessarily implied from the language used."

To determine whether the General Assembly intended subsection -108(b)(3) to have "retrospective effect," one must determine whether the statute alters past legal consequences of a past action or event. A law can be retroactive in two ways, which are sometimes called "strong" or "weak." A law is strongly retroactive if it purports to take effect at a time before its effective date. A stock example from the retroactivity literature will clarify the differences. Suppose that in Year 1 several land deeds are issued that all run afoul of an administrative technicality that renders their deeds invalid. In Year 5, the legislature passes a statute designed to render these deeds valid from their inception. Thus, the statute purports to make the deeds valid throughout Years 1-5, and continuing on into the future. This type of statute is "strongly retroactive," for it changes the past legal consequences of a past act before the statute's effective date.

Subsection -108(b)(3) is not strongly retroactive because, by its own terms, it does not even reference events that occurred before its effective date.

A law is weakly retroactive if it purports to affect the past legal consequences of past actions or events only at and after the law's effective date. Continuing the foregoing example, suppose that a statute purported to render the deeds valid only at and after the statute's effective date (Year 5). Thus, during Years 1-4, the deeds remained invalid (with the attendant potential consequences to insurance and intestacy, etc.). This type of statute would be "weakly retroactive," for it changes the past legal consequences of a past action but only at and after the statute's effective date.

There are two reasons to think that subsection -108(b)(3) is not weakly retroactive. First, nothing in -108(b)(3) is expressly or impliedly tied to a past action or event. Hence, there is no reason to think that -108(b)(3) alters the past legal consequences of a past action or event. Second, subsection -108(b)(3) uses the present tense: "If two (2) years after the effective date of consolidation the real property . . . is not used by the school district. . . ." (Emphasis added.) The present tense indicates the General Assembly's intent for the statute to apply when the two-year window elapses after the statute's effective date. If the legislature intended otherwise, then the statute would have used some form of the past tense, such as "was not used by" or "has not been used by."

Therefore, the answer to your question is "no." Subsection -108(b)(3) does not apply when (as in Scenario 2, above) the consolidation date and the lapsing of the two-year window both occur before 2013.

Question 2: More broadly stated, is there any provision in state law that requires a school district to sell, lease, or donate a building to a charter school?

Given your first question, I take this second question to be limited to whether a consolidated school district that is affected by subsection -108(b)(3) could ever be forced to engage in the activities your question describes. Subsection -108(b)(3) requires that consolidated school districts donate or lease (but not sell) certain realty to a limited pool of entities for certain purposes. One of those entities is "a not-for-profit organization," which would include a charter school. But this forced donation or lease only occurs if -108(b)(3)'s three threshold conditions are all met:

• Time condition: "If two (2) years after the effective date of consolidation . . ."
• Use condition: ". . . the real property of the consolidated school district is not used by the school district for educational purposes . . ."; and
• Disposition condition: ". . . has not been sold, preserved, leased, or donated . . ."

If all three conditions are met, then the board of directors for the consolidated school district "shall make the real property available" to certain entities "by donation or low-cost long-term lease" for certain purposes. (Emphasis added).

Thus, the answer to your question requires a distinction. While no statute expressly requires an unconditional donation, sale, or lease of public-school property to a charter school, the foregoing statute (when its three threshold conditions are met) requires the donation or lease of certain property to a limited pool of entities, which can include certain kinds of charter schools.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

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