If an Idaho school district raises a student fee by more than 5 percent in a year, does the public-notice statute apply, and does the district have to hold a public hearing?

Plain-English summary

State Superintendent Jerry Evans asked the Idaho Attorney General two questions about the 1994 budget-cap statute (Senate Bill 1490, codified at Idaho Code § 63-2224A). First, are the fees school districts charge students for things like sports participation, driver's education, lunch, or locker rental "fees" within the meaning of the new law? Second, if so, how does a district comply with the published-notice requirement when school fees aren't levied against property values?

Deputy Attorney General Elaine Eberharter-Maki, writing for AG Larry EchoHawk, said yes on the first question and gave a workable answer on the second. The 1994 statute capped fee increases at 105 percent of the prior year's amount unless the taxing district published advance notice in a "similar manner" to the existing tax-increase notice statute (Idaho Code § 63-2225). The legislature had not defined "fee," so the AG looked to Black's Law Dictionary and the Idaho Supreme Court's distinction in Brewster v. City of Pocatello, 115 Idaho 502, 768 P.2d 765 (1988): a fee is a charge for a particular service to the consumer, while a tax is a forced contribution to meet public needs at large. Charges for extracurricular activities, driver's education, locker or towel use, adult-ed courses, breakfast and lunch programs, and parking all fit the fee definition. (The Idaho Constitution forbids charging students for courses in which credit is given, per Paulson v. Minidoka Cnty. Sch. Dist. No. 331, 93 Idaho 469, 463 P.2d 935 (1970), so fees are limited to voluntary and supplementary services.)

On the procedure, the AG conceded that § 63-2225's exact form, with a three-property-value table for typical homes, farms, and businesses, doesn't translate to a school fee. But the legislature said "similar manner," not identical, so the AG read the requirement as the published notice plus a public hearing must include the amount, source, percentage increase, exemptions, average per-person cost, and any appeal procedures. Districts can hold the hearing at a regular or special school board meeting; no separate fee-only meeting is required.

Currency note

This opinion was issued in 1994. 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

Why did the AG say school fees are covered when the underlying law was about taxing-district budgets?

S.B. 1490 used the word "fee" without defining it. When a statute leaves a key word undefined, Idaho courts use the plain, ordinary meaning of the word, which the AG drew from Black's Law Dictionary and from the Idaho Supreme Court's tax-versus-fee distinction in Brewster. Under that ordinary meaning, a charge for a particular voluntary service, like lunch, extracurricular sports, or locker rental, is a fee. School districts are taxing districts, the statute applied to all taxing districts, and the legislature did not carve school fees out, so school district fees were within scope.

What kinds of school charges did this opinion cover, and what didn't it cover?

It covered fees for voluntary or supplementary services: extracurricular activities (sports, clubs, theater), driver's education, locker and towel use, adult education, school meals, parking, and similar programs. It did not cover course fees in classes for which credit is given, because Paulson held that the Idaho Constitution forbids charging for credited coursework. So a math textbook fee for a graded class would already be unconstitutional, regardless of S.B. 1490. The notice requirement applied only to voluntary services that a district could lawfully charge for in the first place.

How is "similar manner" different from following § 63-2225 verbatim?

Idaho Code § 63-2225 was written for property tax increases. It required publishing a sample-property table showing the dollar impact on a typical $50,000 home, $100,000 farm, and $200,000 business. That table makes no sense for a school activity fee. The AG read "similar manner" pragmatically: capture the spirit of the property notice (advance disclosure plus a public hearing), but adapt the content to fees. The notice should disclose the amount, source, percent change, exemptions, average per-person cost, and any appeal procedures. The hearing can be a standalone item on a regular school board agenda.

Could a parent or student appeal a fee they thought violated Paulson?

The AG said yes, and that's part of why the published notice should describe an appeal procedure. If a student believed a fee was actually a charge for a credited course (so it would be unconstitutional under Paulson), the appeal would go to an Idaho district court. The notice put students and parents on notice in time to challenge before the fee took effect.

Did this opinion settle whether the 5-percent cap was a hard ceiling, or just a notice trigger?

It was a notice trigger, not a hard ceiling. S.B. 1490 said a taxing district "may not request" an increase exceeding 105 percent of the prior year unless it advertised. So a school district could exceed 105 percent if it published the notice and held the hearing. Failure to advertise made the fees voidable, not automatically void.

Background and statutory framework

The Idaho Legislature passed Senate Bill 1490 in 1994 as part of a broader effort to slow growth in property tax burdens and other taxing-district revenue. The bill, codified as Idaho Code § 63-2224A, prohibited any taxing district from requesting a fee increase greater than 105 percent of the previous year's collected amount unless the district advertised in a "similar manner" to the existing notice procedure for property tax increases under Idaho Code § 63-2225. A district that should have advertised but didn't would have its fees rendered "voidable."

Idaho Code § 63-2225 sets out the form for property tax increase notices: schedule of impact on three sample properties (a $50,000 home, $100,000 farm, $200,000 business), and an invitation to a public hearing. The state superintendent's letter framed the implementation problem: school fees aren't tied to property valuations, so the verbatim form of § 63-2225 didn't fit. The AG used a textualist reading of "similar manner" together with Sherwood v. Carter's rule that statutes should be given their plain, ordinary meaning, and concluded the legislature wanted notice and a hearing for fee increases above 105 percent, with the form adapted to fit the fee context.

The constitutional backdrop is Paulson v. Minidoka Cnty. Sch. Dist. No. 331, 93 Idaho 469, 463 P.2d 935 (1970), which held that the Idaho Constitution's free-public-schools guarantee forbids charging students for courses for which credit is given. That left only voluntary, extracurricular, and supplementary services available for fee-charging in the first place. Brewster v. City of Pocatello, 115 Idaho 502, 768 P.2d 765 (1988), supplied the tax-versus-fee distinction the AG used to confirm that school activity charges are fees.

Citations

• Idaho Code §§ 63-2224A, 63-2225
• S.B. 1490 (1994 Idaho Session Laws)
• Brewster v. City of Pocatello, 115 Idaho 502, 768 P.2d 765 (1988)
• Paulson v. Minidoka Cnty. Sch. Dist. No. 331, 93 Idaho 469, 463 P.2d 935 (1970)
• Sherwood v. Carter, 119 Idaho 246, 805 P.2d 452 (1991)
• Black's Law Dictionary (5th ed. 1979)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP94-04.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 94-4
TO:

Honorable Jerry L. Evans
State Superintendent of Public Instruction
STATEHOUSE MAIL
Per Request for Attorney General's Opinion
QUESTIONS PRESENTED

1.

Do fees charged to students attending public schools fall within the meaning of
"fees" set forth in Senate Bill No. 1490?

2.

If so, how must a school district comply with the advertising requirement set forth
in Idaho Code § 63-2225, since such fees are not assessed against property?
CONCLUSION

1.

Yes. All fees charged by school districts fall within the definition of "fees" set
forth in Senate Bill (S.B.) No. 1490.

2.

While it may not be possible to follow exactly the form of advertising set forth in
Idaho Code § 63-2225, each school district must give public notice and hold a
public hearing for any fee increase that exceeds 105%.
ANALYSIS

1.

School District Fees Fall Within the Mandate of S.B. No. 1490 and Must be
Advertised
S.B. No. 1490, codified as Idaho Code § 63-2224A, provides:
No taxing district may request a fee increase that exceeds one
hundred five percent (105%) of the amount of the fee collected in the
previous year, unless it advertises its intent to do so in a similar manner to
that contained in section 63-2225, Idaho Code. Any taxing district that is
required to advertise as provided in this section and which fails to do so
shall have the validity of all or a portion of the fees it collects be voidable.
A taxing district shall at a minimum, in the advertisement, list the amount
of the fees to be collected, the source of the fees, the percentage increase,
any exemptions to the fees, an average cost of the fees per person, and any
appeal procedures available to the imposition of the fees.

Your letter recognized that the Idaho Constitution prohibits school districts from
charging fees or costs for courses in which credit is given. Paulson v. Minidoka Cnty.
Sch. Dist. No. 331, 93 Idaho 469, 463 P.2d 935 (1970). However, school districts may
charge fees for voluntary activities and extra costs such as extracurricular activities,
driver's education, towel or locker use, adult education courses, breakfasts and lunches,
parking and similar services or activities.

The Idaho Legislature did not define "fee" in S.B. No. 1490. Thus, we must look
for guidance to relevant definitions of "fee" and the rules of statutory construction to see
how those definitions might be applied in this instance.
Black's Law Dictionary (5th ed. 1979) provides the following definition of a fee:
A charge fixed by law for services of public officers or for use of a
privilege under control of government. A recompense for an official or
professional service or a charge or emolument or compensation for a
particular act or service. A fixed charge or perquisite charged as
recompense for labor; reward, compensation, or wage given to a person for
performance of services or something done or to be done.
(Citation omitted.)
In Brewster v. City of Pocatello, 115 Idaho 502, 768 P.2d 765 (1988), the Idaho
Supreme Court distinguished between a "fee" and a "tax" by stating "a fee is a charge for
a direct public service rendered to the particular consumer while a tax is a forced
contribution by the public at large to meet public needs." Id. at 505, 768 P.2d at 768.
The rules of statutory construction must also be applied. In Sherwood v. Carter,
119 Idaho 246, 254, 805 P.2d 452, 460 (1991), the Idaho Supreme Court stated:
It is a basic rule of statutory construction that, unless the result is
palpably absurd, we must assume that the legislature means what is clearly
stated in the statute. Statutes must be interpreted to mean what the
legislature intended for the statute to mean, and the statute must be
construed as a whole. The clearly expressed intent of our legislature must
be given effect and there is no occasion for construction where language of
the statute is unambiguous. In construing a statute, the words of the statute
must be given their plain, usual and ordinary meaning.
(Citations omitted.)

In this instance, what is "clearly stated" is that a fee increase of more than 105% of
the previous year's fee amount cannot be imposed by a taxing district unless it advertises
its intent to do so. If we apply the "plain, usual and ordinary meaning" to the words here,
a "fee" is a charge for a particular act or service (Black's 1979) "or a charge for a direct
public service rendered to the particular consumer" (Brewster, 115 Idaho at 502, 768 P.2d
at 765). Thus, it is apparent that a "fee" charged by a school district for voluntary or
extracurricular activities or services falls within the legal definition of "fee" set forth in
S.B. No. 1490 and that any increase over the fees of the previous year of 5% or more
must be advertised.
2.

A School District Must Give Notice and Hold a Public Hearing for a Fee
Increase in Excess of Five Percent

Idaho Code § 63-2225 sets forth the form and content of notice of a proposed
increase in taxes. The notice must include an estimated schedule of increase for a typical
home of $50,000, a typical farm of $100,000, and a typical business of $200,000 taxable
value. The purpose of the notice is to inform taxpayers of the proposed increase by the
taxing district and to put the proposal into some kind of financial perspective by allowing
taxpayers to see what the tax effect might be on certain types of property.
A published notice of proposed fee increases should have the same effect, namely,
to notify the readers of the proposed fee increase and of the ramifications of the fee
increase. S.B. No. 1490 requires that the advertisement be in a "similar manner to that
contained in § 63-2225, Idaho code." Thus, the public notice must include the "amount
of the fees to be collected, the source of the fees, the percentage increase, any exemptions
to the fees, an average cost of the fees per person, and any appeal procedures available to
the imposition of the fees."
For property taxpayers, the notice required by Idaho Code § 63-2225 is
primarily informational. The taxpayer does not have a choice to pay or not to pay.
Applied to school district fee structures, however, the notice requirement gives the
prospective payer, the student, a chance to decide whether he or she wishes to pay for
the service or activity. Since Paulson prohibits school districts from charging students
for courses in which credit is given, the "fee" notice will apply to areas over which the
student has some discretion. And, should the student wish to argue that the proposed fee
increase does, in fact, apply to an area covered by Paulson, the notice will also include
information about how that student might appeal. Such an appeal would be to an Idaho
district court.
While S.B. No. 1490 does not address the issue of a public hearing, it does
provide that the notice requirement must be handled in a "similar manner" as the notice
requirement of Idaho Code § 63-2225. That notice must invite citizens to a public

hearing on the matter. Thus, it can only be concluded that the legislature intended for a
public hearing to be held on the issue of fee increases. School districts can hold such
public hearings at regular or special school board meetings, thus eliminating the need for
special meetings solely for the purpose of reviewing the proposed fee increases.
AUTHORITIES CONSIDERED
1.

Idaho Code:
§ 63-2224A.
§ 63-2225.

2.

Idaho Cases:
Brewster v. City of Pocatello, 115 Idaho 502, 768 P.2d 765 (1988).
Paulson v. Minidoka Cnty. Sch. Dist. No. 331, 93 Idaho 469, 463 P.2d 935 (1970).
Sherwood v. Carter, 119 Idaho 246, 805 P.2d 452 (1991).

3.

Other Authorities:
Black's Law Dictionary (5th ed. 1979).
DATED this 19th day of July, 1994.
LARRY ECHOHAWK
Attorney General

Analysis by:
ELAINE EBERHARTER-MAKI
Deputy Attorney General
State Department of Education