If voters of a Minnesota school district sign a petition to force a special election on selling bonds to build a community recreational facility on school property, must the district go through the state's review-and-comment process first, and can the election still be held if the Commissioner of Children, Families and Learning issues a negative review?

Plain-English summary

In October 1997, Independent School District No. 197 (West St. Paul, Mendota Heights, Eagan) received a voter petition asking the district to hold a special election authorizing bonds to design, build, and equip a multi-purpose activity center at the Henry Sibley High School campus. The district's community task force had previously studied a community activity center and the board had decided in September 1996 that the project was not financially feasible. The district's attorneys, John M. Roszak and Jay T. Squires of Ratwik, Roszak, Maloney, P.A., asked the AG four questions on how to handle the petition.

AG Hubert H. Humphrey III answered the questions through Assistant AG Charles T. Motil:

1. Yes, Minn. Stat. § 205A.05, subd. 1 (Supp. 1997) authorizes voters to compel a special election by petition for the issuance of school bonds, just as the predecessor statute § 123.32, subd. 22 did under the 1970 AG opinion of the same number.
2. Yes, the school district must complete the review-and-comment process under Minn. Stat. §§ 121.148 and 121.15 before the petition-driven election may be held.
3. No, no bond election may be held if the Commissioner of Children, Families, and Learning (then the relevant state official) issues a negative review and comment. Negative review precludes the election, whether the election was initiated by the board or by voter petition.
4. Yes, the multi-purpose community recreational facility described (ice arena, soccer field, swimming pool, senior center, with 50% school program use) is a "school facility" or "educational facility" subject to the review-and-comment provisions of §§ 121.148 and 121.15.

The opinion is significant in two respects. First, it confirmed and extended a 1970 AG opinion (also numbered 159-a-3) holding that a voter petition can compel a school bond election. Second, it clarified that the 1990 enactment of the negative-review preclusion in Minn. Stat. § 121.148, subd. 3(c) overrides the petition rule when a negative review is issued, because the later-enacted statute prevails under Minn. Stat. § 645.26, subd. 4, and because allowing a petition election after a negative review would be an unreasonable result.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The 1998 statutes referenced here (especially the role and title of the "Commissioner of Children, Families, and Learning," the specific § 121.148 and § 121.15 framework, and the $400,000 trigger) have been restructured through subsequent legislative recodifications. Treat this page as historical context, not current legal advice. Verify current Minnesota Department of Education statutes and review-and-comment requirements before relying on any specific rule or threshold described here.

Historical context: what the AG concluded

Question One: petition-driven bond election. The 1970 AG opinion of the same number (Op. Atty. Gen. 159-a-3, May 25, 1970) had construed Minn. Stat. § 123.32, subd. 22 (1967) to hold that a voter petition could force a school district to call a special election on issuing bonds for an outdoor hockey arena, but that an affirmative vote did not compel the board to actually issue the bonds. In 1987, the Legislature repealed § 123.32 effective July 1, 1988 and enacted § 205A.05 to address school district special elections (Minn. Laws 1987, ch. 266, art. 1, §§ 52, 69; art. 2, §§ 14, 15).

Section 205A.05, subd. 1, added a first sentence: "Special elections must be held for a school district on a question on which the voters are authorized by law to pass judgment." The AG construed the phrase "pass judgment" to include the bond authorization context. Voters may "pass judgment" on consolidation (§ 122.23), board size (§ 123.33), tax levy (§ 124A.03), and bond authorization (§ 475.58, subd. 1). The remainder of subd. 1 is "substantially identical" to its repealed predecessor, so the 1970 opinion's reasoning continued to govern. Under Minn. Stat. § 645.37, when a repealed provision is reenacted in substantially the same terms, the earlier law is construed as continuing in active operation.

The opinion also addressed the timing concern. The district had considered the project in September 1996; the voter petition arrived in October 1997. Minn. Stat. § 475.58, subd. 1a permits the same bond question to be raised within as little as 180 days of a prior election for the same purpose. A school board decision made more than a year ago does not bar a petition-driven special election.

Question Two: review-and-comment requirement. Minn. Stat. § 121.15, subd. 6 (Supp. 1997) bars a school district from initiating an installment contract, holding a "referendum for bonds," or soliciting construction bids for new construction, expansion, or remodeling of an educational facility involving more than $400,000 per school site, "prior to review and comment by the commissioner." The petition-driven special election is a "referendum for bonds" within the meaning of subd. 6. The text contains no carve-out for petition-driven elections.

The AG harmonized § 205A.05 (petition-driven elections) with §§ 121.148 and 121.15 (review and comment). Under Minn. Stat. § 645.26, subd. 1, statutes should be construed so both can have effect. The purposes are compatible: the petition mechanism brings questions to the voters when a board declines to act; the review-and-comment process informs voters before they decide. The Commissioner of Children, Families, and Learning evaluates the proposed project, considers its educational and economic advisability, and issues a positive, unfavorable, or negative review.

Different review outcomes carry different consequences:
- Positive review: the board publishes the review and may proceed with the election.
- Unfavorable review: the board may proceed only if the question receives 60% affirmative vote at the election (Minn. Stat. § 121.148, subd. 4).
- Negative review: the district may not proceed with construction (Minn. Stat. § 121.148, subd. 3(c)).

Question Three: effect of negative review on petition-driven election. Minn. Stat. § 121.148, subd. 3(c) provides that "[a] school board may not proceed with construction" if the state board upholds the commissioner's negative review or the negative review is not appealed. The AG read "proceed with construction" to incorporate the items in § 121.15, subd. 6, including holding a referendum for bonds. So a negative review precludes a bond election whether the election is board-initiated or petition-driven.

The AG acknowledged this conclusion was in tension with the 1970 AG opinion that voter petitions compel an election. The negative-review preclusion of § 121.148, subd. 3(c) was added by Minn. Laws 1990, ch. 562, art. 5, § 1, subd. 3. The petition-driven election provisions long predated 1990. When two statutes conflict, Minn. Stat. § 645.26, subd. 4 provides that the law latest in date of final enactment prevails. So the 1990 negative-review preclusion overrides the older petition-election rule. The AG also relied on Minn. Stat. § 645.17 (avoid unreasonable result) to support the same conclusion: holding an election to authorize bonds for a project that has been precluded from proceeding would be irrational.

Question Four: community recreational facility as "school facility." The petition described a multi-purpose facility with an ice arena, soccer field, swimming pool, and senior center, to be built on school property and used 50% for school programs and 50% for community activities. Section 121.15, subd. 6 uses "educational facility" while § 121.148 uses "school facility." The AG found no legally significant difference between the two terms.

The opinion looked to related statutes to confirm. Minn. Stat. § 475.52, subd. 5 authorizes school districts to issue bonds for capital improvements including "gymnasiums, athletic fields, stadia, teacherages, school garages, school buses, and all other facilities for administration, academic instruction, and physical and vocational education." Ice arenas, soccer fields, and swimming pools fall within that scope. Minn. Stat. § 471.19 governs school recreational programs and contemplates that school facilities can be used for recreational purposes secondary to "the regular school curriculum and related activities." The multi-purpose facility described falls within both provisions. Accordingly, it is a "school facility" or "educational facility" subject to review and comment.

Common questions

Q: Could the school district just hold the petition election and skip review and comment to save money?
A: As described in the opinion, no. The review-and-comment requirement applies before any bond referendum, regardless of how the referendum was initiated. The text of § 121.15, subd. 6 contains no exemption for petition-driven elections.

Q: What did review and comment cost the district in 1998?
A: The opinion notes the district had been advised that architectural and design fees needed for the review-and-comment submission could cost approximately $10,000 to $25,000 in 1997-1998 dollars. Costs today would differ; consult a current school finance professional.

Q: What kind of information does the district have to provide for review and comment?
A: Per Minn. Stat. § 121.15, subd. 7, the district has to provide a substantial amount of information about the proposed project, including anticipated need, a reasonably detailed description of the construction project, estimated annual operating costs, effects on the district's operating budget, anticipated benefit to the area, and the level of collaboration with other governmental and nonprofit entities. The Commissioner uses that information to evaluate educational and economic advisability and to return the review within 60 days (subd. 8).

Q: What is the difference between an "unfavorable" review and a "negative" review?
A: An unfavorable review requires the school board to reconsider; if the board still proceeds to a bond election, the 60% supermajority approval applies under § 121.148, subd. 4. A negative review precludes the project entirely, including blocking the bond election under § 121.148, subd. 3(c).

Q: Can a negative review and comment be appealed?
A: As described in the opinion, yes. The statute references appeal to the state board of education. The preclusion applies if "the state board of education upholds the commissioner's negative review and comment or the commissioner's negative review and comment is not appealed."

Q: Does the timing rule in § 475.58, subd. 1a permit re-running a defeated bond question 180 days later?
A: The opinion cites § 475.58, subd. 1a to confirm that a school board's earlier consideration of feasibility does not bar a later petition-driven election. The 180-day language addresses how soon the same question can be resubmitted; it does not extend a negative review-and-comment preclusion.

Q: Why did the AG use a "later in date of enactment" canon to resolve the conflict between petition election and negative-review preclusion?
A: Under Minn. Stat. § 645.26, subd. 4, when two statutes irreconcilably conflict, the later-enacted law prevails. The petition-election provision in § 205A.05 (and its substantially identical predecessor in § 123.32, subd. 22) predates 1987; the negative-review preclusion in § 121.148, subd. 3(c) was added in 1990. The 1990 enactment is later in time and controls.

Q: Is the AG opinion binding on a school district?
A: AG opinions are advisory in Minnesota. They are persuasive authority but not binding on the courts. School districts generally follow them as a practical matter, and the opinion catalogs the analysis a court would apply.

Background and statutory framework

The Minnesota school bond election framework, as it stood in 1998, sat on three statutory tiers:

1. Voter authorization for bond issuance. Minn. Stat. § 475.58, subd. 1 requires voter approval before a school board may issue general obligation bonds, except in narrow statutory exceptions. Affirmative vote authorizes but does not compel issuance.
2. Special-election mechanism. Minn. Stat. § 205A.05, subd. 1 (Supp. 1997) provides for special school district elections "on any matter requiring approval of the voters of a district." A board may call an election on its own initiative; voters may also petition for an election. Predecessor statute Minn. Stat. § 123.32, subd. 22 (1986) used substantially identical language and was repealed in 1987.
3. Review and comment by the Commissioner. Minn. Stat. § 121.15, subd. 6 (Supp. 1997) bars certain pre-construction commitments, including holding a bond referendum, before the Commissioner has completed review and comment, when the expenditure exceeds $400,000 per school site. Minn. Stat. § 121.148 (1996) governs the review outcomes: positive, unfavorable (requiring 60% bond vote), or negative (precluding construction).

The conflict resolved by this opinion was between the petition mechanism (older) and the negative-review preclusion (1990 amendment). The AG resolved the conflict in favor of the later-enacted preclusion under Minn. Stat. § 645.26, subd. 4, while also reinforcing the conclusion by reference to the unreasonable-result canon in § 645.17.

The opinion was issued by AG Hubert H. Humphrey III through Assistant AG Charles T. Motil.

Citations and references

Statutes:
- Minn. Stat. § 121.148 (1996) and subds. 1, 3, 3(c), 4
- Minn. Stat. § 121.15 (Supp. 1997) and subds. 6, 7, 8, 9
- Minn. Stat. § 205A.05, subd. 1 (Supp. 1997)
- Minn. Stat. § 122.23, subds. 10-13 (1996)
- Minn. Stat. § 123.33, subd. 1 (1996)
- Minn. Stat. § 124A.03, subd. 2 (1996)
- Minn. Stat. § 475.52, subd. 5 (1996)
- Minn. Stat. § 475.58, subds. 1, 1a (1996)
- Minn. Stat. § 471.19 (1996)
- Minn. Stat. §§ 471.15-471.19
- Minn. Stat. § 645.16(5) (1996)
- Minn. Stat. § 645.17 (1996)
- Minn. Stat. § 645.26, subds. 1, 4 (1996)
- Minn. Stat. § 645.37 (1996)
- Minn. Stat. § 123.32, subd. 22 (1986) (repealed)

Session laws:
- Minn. Laws 1987, ch. 266, art. 1, §§ 52, 69
- Minn. Laws 1987, ch. 266, art. 2, §§ 14, 15
- Minn. Laws 1990, ch. 562, art. 5, § 1, subd. 3

Prior AG opinions:
- Op. Atty. Gen. 159-a-3 (May 25, 1970)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/159a3-19980311.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

EDUCATION: INDEPENDENT SCHOOL DISTRICT: BOND ELECTION: REVIEW AND COMMENT: School board which receives petition by voters to hold special election to authorize issuance of bonds for school facility must submit project for review and comment. A community recreational facility as described by school district is subject to review and comment procedures. Unless the review and comment is negative, school board must call the special election petitioned by voters. Minn. Stat. §§ 121.148 (1996), 121.15 (Supp. 1997), 205A.05 (Supp. 1997). Affirmative vote in bond election does not compel board to issue bonds. Op. Atty. Gen. 159-a-3, May 25, 1970.

March 11, 1998

John M. Roszak, Esq.
Jay T. Squires, Esq.
Ratwik, Roszak, Maloney, P.A.
300 Peavey Bldg.
730 Second Avenue South
Minneapolis, MN 55402

159-a-3
(Cr. Ref. to 159-b-1, 622-a-1 and 622-b)

Dear Messrs. Roszak and Squires:

In your letter to Attorney General Hubert H. Humphrey III you present substantially the following:

FACTS

In October of 1997, Independent School District No. 197 (West St. Paul-Mendota Heights-Eagan) was presented with a petition signed by voters of the School District. The petition requests the Board of Education to authorize and hold a special election for the school district "in accordance with applicable and current Minnesota State Statutes." The petition goes on to state:

The Special Election ballot will pose question(s) to District voters authorizing the sale of bonds to finance the design, construction and equipping of a multi-purpose activity center to be located at the Henry Sibley High School campus. The activity center could house facilities to serve all District resident and youth programs.

Previously, the School District had created a community task force to study various proposals, including proposals that contemplated the erection of a community activity center in the District. In September of 1996, the School Board determined, based on cost considerations and the availability of existing space, that plans to erect a community facility were not feasible.

As a result of receiving the petition for the special election, the administration of the School District has attempted to determine the cost of architectural and design fees to comply with Minn. Stat. § 121.148 et seq. if the District is required to do so prior to conducting an election pursuant to the petition. Although the matter is not without some uncertainty, the District has been advised that it could cost approximately $10,000 to $25,000 for such fees.

You then ask substantially the following:

QUESTION ONE

Whether Minn. Stat. § 205A.05, subd. 1 (Supp. 1997) authorizes voters of a school district, by petition, to compel the School District to hold a special election on the question of issuance of bonds for construction of school facilities?

OPINION

Subject to our response to your third question as discussed below, we answer your first question in the affirmative. In Op. Atty. Gen. 159-a-3, May 25, 1970, construing the provisions of Minn. Stat. § 123.32, subd. 22 (1967), we concluded that a petition of the voters calling for a special election on the question of issuing bonds to finance construction of an outdoor hockey arena required that the school board call an election on the matter. We also concluded, however, that while an affirmative vote in the election authorized the school board to issue the bonds, it did not compel the board to issue the bonds.

Although the special election provisions for school districts are now contained in Minn. Stat. § 205A.05, subd. 1 (Supp. 1997) rather than Minn. Stat. § 123.32, subd. 22, we conclude that the answer to your question remains the same under the current statute. In 1987, the Legislature repealed Minn. Stat. § 123.32 (1986) effective July 1, 1988. Minn. Laws 1987, ch. 266, art. 2, §§ 14 and 15. At the same time, it enacted Minn. Stat. § 205A.05 to address the subject of special elections in school districts. Minn. Laws 1987, ch. 266, art. 1, §§ 52 and 69. One obvious difference between the last version of Minn. Stat. § 123.32, subd. 22 (1986) and the special election language of section 205A.05, subdivision 1, enacted in 1987 is the addition of the first sentence of the latter. It provides:

Special elections must be held for a school district on a question on which the voters are authorized by law to pass judgment.

Under Minnesota law, voters are authorized to "pass judgment" on a variety of issues through the election process. For example, voters are authorized to approve consolidation actions (Minn. Stat. § 122.23, subds. 10-13 (1996)); to increase the size of the school board (Minn. Stat. § 123.33, subd. 1 (1996)); to increase the tax levy of the school district (Minn. Stat. § 124A.03, subd. 2(a) and (b) (1996)); or to revoke or reduce the amount generated thereby (id. at clause (c)); and to authorize the school board to issue general obligation bonds for school facility construction projects (Minn. Stat. § 475.58, subd. 1 (1996)). Except for the last example, each of these elections mandates that some action be taken following an affirmative vote of a majority of those voting on the question. In either case, however, the voters are "passing judgment" on questions which necessitate voter approval as a prerequisite to action. The last example, an election authorizing a school board to issue general obligation bonds, does not compel the board to issue the bonds. Op. Atty. Gen. 159-a-3, May 25, 1970. Nevertheless, unless an exception to the general rule applies, a school board may not issue general obligation bonds for the school district without an affirmative vote at the election. Consequently, voters at school bond elections are "passing judgment" upon the question of whether their school board should be authorized to issue bonds for the purpose presented at the election. Thus, we conclude that the first sentence of section 205A.05, subdivision 1 does not preclude a special election by petition on the question of authorizing the school board to issue bonds.

Significantly, the remainder of the special election language of section 205A.05, subdivision 1 (Supp. 1997) is substantially identical to its predecessor, Minn. Stat. § 123.32, subd. 22 (1986). The language of section 123.32, subdivision 22, relied upon in Op. Atty. Gen. 159-a-3, May 25, 1970, remained the same until its repeal in 1987. That language provided in relevant part that:

The board of an independent district may and upon petition . . . shall by resolution call a special election to vote on any matter requiring approval of the voters of the district.

The new special election provision, enacted as section 205A.05, subdivision 1 provides in relevant part that:

Upon petition . . . the school board shall by resolution call a special election to vote on any matter requiring approval of the voters of a district.

Consequently, for purposes of responding to your first question, the provisions of the new school district special election statute contain substantially the same terms as its immediate predecessor. Thus, we conclude that your first question is resolved by Op. Atty. Gen. 159-a-3, May 25, 1970.

Based upon the foregoing, it is our opinion that, subject to the qualifications discussed below, Minn. Stat. § 205A.05, subd. 1 (Supp. 1997) authorizes the voters of a school district, by petition, to compel the school district to hold a special election on the question of issuance of bonds for construction of school facilities.

Your letter presenting the District's request for an opinion also expresses a concern about another issue raised by the first question. The concern is that the voters' petition has been presented in a situation where the School Board has recently considered the feasibility of the project which is the subject of the petition and the School Board determined not to pursue the project. Under the facts presented, however, more than a year has passed between the School Board's decision that the project was not feasible and its receipt of the voters' petition. While the facts presented do not indicate whether the School Board ever submitted the question of issuing bonds for the community recreational facility to the voters, Minn. Stat. § 475.58, subd. 1a (1996) allows the question of authorizing bonds to be raised a second time within a period of as little as 180 days from the date an election was held for the same purpose and for the same amount. The fact that the School Board considered the feasibility of the proposed project or a similar one over a year ago does not now bar a special election by petition from being held.

QUESTION TWO

If the answer to Question One is in the affirmative, whether the School District must comply with Minn. Stat. § 121.148 et seq., the review and comment law, prior to the conduct of the election?

OPINION

We answer to your second question in the affirmative. Minn. Stat. § 121.15, subd. 6 (Supp. 1997) provides in relevant part that:

A school district . . . must not initiate an installment contract for purchase or a lease agreement, hold a referendum for bonds, nor solicit bids for new construction, expansion, or remodeling of an educational facility that requires an expenditure in excess of $400,000 per school site prior to review and comment by the commissioner.

(Emphasis added.) The special election under section 205A.05, subdivision 1, discussed in response to your first question, is certainly a "referendum for bonds" within the meaning of section 121.15, subdivision 6. Neither section 205A.05 nor the review and comment provisions of section 121.15 contain any express exemption allowing a referendum for bonds to be held pursuant to a petition for a special election without a review and comment. Consistent with the goal of statutory construction, we believe that section 205A.05, subdivision 1 and section 121.15, as relevant to the subject of your questions, may be construed so that effect may be given to both. Minn. Stat. § 645.26, subd. 1 (1996).

One purpose of the special election by voter petition set out in section 205A.05, subdivision 1 is to allow questions to be put before the voters of the district where the school board may have chosen not to do so. An affirmative vote at the special election, particularly where a significant number of voters participate and support the ballot question, may be persuasive and convince the school board to change its position and pursue the project which is the subject of the ballot. The purposes of the review and comment provisions of Minn. Stat. § 121.148 (1996) and Minn. Stat. § 121.15 (Supp. 1997) are compatible with the special election by petition purposes of the section 205A.05, subdivision 1. Prior to holding a referendum for bonds, and to aid the Commissioner of Children, Families, & Learning in conducting a review and comment, a school district is required to provide the Commissioner with a substantial amount of information about a proposed project. Minn. Stat. § 121.15, subd. 7 (Supp. 1997). Such information ranges from the anticipated need for the facility, a reasonably detailed description of the construction project, the estimated annual operating costs, the effects of the proposed facility on the district's operating budget, the anticipated benefit of the facility to the area, and the level of collaboration at the facility between the district and other governmental and nonprofit entities. Minn. Stat. § 121.15, subd. 7(b), (c), (d), (f), (k), and (l).

Using the information required to be submitted by subdivision 7, and other information as determined by the Commissioner, the Commissioner evaluates the proposed project, addresses its educational and economic advisability, and returns the review and comment to the school district within 60 days. Minn. Stat. § 121.15, subd. 8 (1996). The review and comment may be either positive, unfavorable or negative. Minn. Stat. § 121.148, subd. 1; Minn. Stat. § 121.15, subd. 8 (1996). The results of the review and comment impact a bond election differently. If a project receives either a positive or an unfavorable review and comment, the school board is required to publish the Commissioner's review and comment in the district's legal newspaper before a bond election is held. Minn. Stat. § 121.15, subd. 9 (1996). A positive review and comment provides information to the voters so that they can make an informed decision at the polls. An unfavorable review and comment requires reconsideration of the project by the school board and, if the question is nevertheless submitted to the voters, requires a 60% affirmative vote at the election to authorize the issuance of school bonds. Minn. Stat. § 121.148, subd. 4. A negative review and comment precludes the district from proceeding with construction. Minn. Stat. § 121.148, subd. 3(c) (1996).

In summary, the information provided by the school district to the Commissioner allows the Commissioner to make a decision on the project. If a bond election is to be held, the Commissioner's decision is shared by the school board with its voters prior to the election. The information gives the voters information from which they can make informed decisions on the project in deciding whether to authorize the school board to issue bonds for the project.

Based on the foregoing, section 205A.05, subdivision 1 allows voters to petition to bring certain matters to an election by all of the voters of the district where the school board may have otherwise declined to act on the matter. Sections 121.148 and 121.15 provide a procedure through which voters will receive information from which they can make an informed decision at the polls. It is, therefore, our opinion that the school district must comply with Minn. Stat. § 121.148 and Minn. Stat. § 121.15, the review and comment law, prior to conducting a bond election initiated by a petition of the voters pursuant to section 205A.05, subdivision 1.

QUESTION THREE

If the answer to Question No. 2 is in the affirmative, whether a bond election pursuant to a petition must be held if the review and comment process results in a negative review and comment to the School District?

OPINION

Based upon the assumption that the Commissioner's negative review and comment follows the procedure set out in Section 121.148, subd. 3, we answer your question in the negative. Minn. Stat. § 121.148, subd. 3(c) provides that:

A school board may not proceed with construction if the state board of education upholds the commissioner's negative review and comment or the commissioner's negative review and comment is not appealed.

(Emphasis added.) To give effect to the impact of a negative review and comment, we believe the phrase "proceed with construction" in clause (c) includes those items identified in section 121.15, subd. 6 (Supp. 1997) as part of an entire project leading up to the construction, expansion or remodeling of a school building. Thus, a school district which receives a negative review and comment "must not initiate an installment contract for purchase or a lease agreement, hold a referendum for bonds, nor solicit bids for new construction, expansion, or remodeling or an education facility . . . ." Minn. Stat. § 121.15, subd. 6. We reach this conclusion since each of these activities involves an expenditure of funds and some involve long term commitments by a school district where the school district has been precluded by a negative review and comment from proceeding with construction.

We realize that the conclusion that a negative review and comment precludes a bond election by voter petition is at odds with one of the conclusions in Op. Atty. Gen. 159-a-3, May 25, 1970. In that opinion, we concluded that a petition by voters for a special election on authorizing the sale of bonds required the school district to hold such an election. However, the statutory provisions precluding a school district from proceeding with construction based on a negative review and comment were not enacted until 1990. Minn. Laws 1990, ch. 562, art. 5, § 1, subd. 3.

By contrast, the statutory provisions providing for a special election by petition of the voters significantly predate 1990. The provisions of section 205A.05, subdivision 1, providing for a special election by petition of the voters, as enacted in 1987, are substantially identical to those contained in its longstanding predecessor, Minn. Stat. § 123.32, subd. 22 (1986), which was repealed in the same 1987 law. Minn. Laws 1987, ch. 266, art. 1, § 52 and art. 2, § 14. Minn. Stat. § 645.37 (1996) provides in relevant part that:

When a law is repealed and its provisions are at the same time reenacted in the same or substantially the same terms by the repealing law, the earlier law shall be construed as continued in active operation.

Thus, after receipt of a petition, Minn. Stat. § 205A.05, subd. 1, containing substantially the same language construed in Op. Atty. Gen. 159-a-3, May 25, 1970, generally requires a school district to hold an election on the question of authorizing the school board to issue bonds for construction. On the other hand, a negative review and comment issued pursuant to sections 121.148 and 121.15 precludes the holding of such an election. This conflict is resolved by Minn. Stat. § 645.26, subd. 4 (1996) with the result that the law specifying the impact of a negative review and comment, as the law latest in date of final enactment, prevails. This interpretation also avoids the unreasonable result of holding an election to authorize the issuance of bonds for a project which has been precluded by a negative review and comment. Minn. Stat. § 645.17 (1996).

Based upon the foregoing, it is our opinion that no school bond election may be held if a negative review and comment is issued regardless of whether the election is proposed by the school board or pursued by the voters through a petition.

QUESTION FOUR

Whether the review and comment procedures apply to the construction of a multi-purpose community recreational facility?

OPINION

We answer your question in the affirmative. As indicated in your letter, the contemplated multi-purpose community recreational facility may consist of an ice arena, soccer field, swimming pool, and senior center. The facility would be constructed on school property and other governmental and private organizations may be involved in the project. It is estimated that, if constructed, the School District would utilize the facility in its education program on a 50% time basis while other community activities would utilize the facility the other 50% of the time.

You have noted that Minn. Stat. § 121.15, subd. 6 (Supp. 1997) uses the term "educational facility" while Section 121.148 (1996) uses the term "school facility." See Minn. Stat. § 121.148, subds. 1 and 3 (1996).

In the context of a multi-purpose community recreational facility intended to be used as described in your letter, we do not find the difference in the terms "educational facility" and "school facility" to be significant. The multi-purpose community recreational facility described in your letter can be appropriately described as either a "school facility" or an "educational facility." In determining whether the Legislature intended that a multi-purpose community recreational facility as described is subject to the review and comment provisions, it is appropriate to look at other laws on the same or a similar subject. Minn. Stat. § 645.16(5) (1996). Since the School District would be proceeding with an election to authorize the sale of bonds for the construction of such a facility, it is appropriate to look to the purposes for which a school district may issue its general obligation bonds. Minn. Stat. § 475.52, subd. 5 (1996) provides that:

For capital improvements any school district may issue bonds for the acquisition or betterment of school facilities, including gymnasiums, athletic fields, stadia, teacherages, school garages, school buses, and all other facilities for administration, academic instruction, and physical and vocational education.

(Emphasis added.) The inclusion of the ice arena, soccer field, and swimming pool in the proposal are certainly facilities of the types identified in the emphasized language of subdivision 5. All of the examples identified in subdivision 5, including the athletic buildings, fall under the general term, "school facilities."

Since the School District may pursue the community recreational facility with others including other governmental units, it is also appropriate to examine Minn. Stat. § 471.19 (1996). That provision provides that:

The facilities of any school district, operating a recreational program pursuant to the provisions of Sections 471.15 to 471.19 shall be used primarily for the purpose of conducting the regular school curriculum and related activities and the use of school facilities for recreational purposes authorized by those sections shall be secondary.

(Emphasis added.) The proposal described in your letter seems to be intended to comply with the use requirements of section 471.19. The language of that section requires that such facilities must be used primarily for conducting "the regular school curriculum and related activities," i.e., "educational" purposes and also recognizes that such "school facilities" can be used for recreational purposes.

Finally, and significantly, while section 121.15, subd. 6, requiring a review and comment prior to a bond election, uses the term "educational facility," the provisions of section 121.148, detailing the review and comment process, use the term "school facility." See Minn. Stat. § 121.148, subds. 1 and 3. Thus, there does not appear to be an intended difference in the use of the two terms.

In light of the foregoing, we conclude that the Legislature's use of the term "educational facility" in section 121.15, subd. 6 while using the term "school facility" or "school facilities" in related statutes is not legally significant. It is, therefore, our opinion that a proposed construction multi-purpose community recreational facility by the School District is subject to the review and comment provisions of sections 121.148 and 121.15.

Very truly yours,

HUBERT H. HUMPHREY III
Attorney General

CHARLES T. MOTIL
Assistant Attorney General