TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL State of California

DANIEL E. LUNGREN Attorney General

______________________________________ OPINION : : No. 97-1001 of :

: February 25, 1998 DANIEL E. LUNGREN : Attorney General :

: ANTHONY S. Da VIGO : Deputy Attorney General :

:

______________________________________________________________________ THE HONORABLE BERNIE RICHTER, MEMBER OF THE CALIFORNIA ASSEMBLY, has requested an opin ion on the following questions:

1. Does a school district have the authority to establish a school within the geographical and attendance boundaries of another school district?

2. Does a school district ha ve the authority to establish a charte r school within the geographical and attendance boundaries of another school district?

3. Would a school district be liable for the actions of a school established within its geographical and attendance boundaries by another school district ?

CONCLUSIONS 1. A school district has the authority to es tablish a school within the geographical and attendance boundaries of another school distri ct only if the school is located on a site immediately adjacent to a school site within the district's boundaries. 2. A school district has the authority to establish a charter school within the geographical and attendance boundaries of another school district.3. A school district would not be liable for the actions of a school established within its geographical and attendance boundaries by another school district.

ANALYSIS

1. Traditional Schools in Other Districts The first inquiry is whether a school district may establish a school w ithin the geographical boundaries of another district. We conclude th at it may under narrowly defined conditions.

Section 5 of article IX of th e Constitution provides: "The Le gislature shall provide for a system of common schools by which a free school sh all be kept up and supported in each district at least six months in every ye ar, after the first year in whic h a school has been established." Section 14 of the same article states: "The Legislature shall have the power, by genera l law, to provide for the incorporation and organization of school districts. . . . "The Legislature may authorize the governing boar ds of all school distri cts to initiate and carry on any programs, activities, or to otherwise act in any manner which is not in conflict with the laws and purposes for which school districts are established." Pursuant to this constitutional grant of authorit y, the Legislature has enact ed section 35160 of the Education Code Footnote No. 1 as follows: "On and after January 1, 1976, the governing board of any school district may initiate and carry on any program, activity, or may otherwise actin any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established." Section 35160.1 additionally provides: "(a) The Legislature finds and declares that scho ol districts . . . have diverse needs unique to their individual communities and programs. Mo reover, in addressing their needs, common as well as unique, school districts . . . should have the flexibility to create their own unique solutions. "(b) In enacting section 35160, it is the intent of the Legislature to give school districts . . . broad authority to carry on activities and programs, includi ng the expenditure of funds for programs and activities which, in the determination of the go verning board of the school district . . . are necessary or desirable in mee ting their needs and are not inconsistent with the purposes for which the funds were appropriated. It is the intent of the Le gislature that Section 35160 be liberally construed to effect this objective. "(c) The Legislature further declares that the adoption of this section is a clarification of existing law under Section 35160."Accordingly, while prior to January 1, 1976, we were required to search for express or implied authorization for a school district progra m, we now look to whether a particular activity is precluded by any law. (73 Ops.Cal.Atty.Gen. 84, 86 (1990).) If a district 's program or activity is neither in conflict nor inconsistent withany provision of law, it is permitted. Prior to January 1, 1988, secti on 37100 provided as follows: "Whenever the governing board of a school distri ct is unable to maintain the school or schools in the district because of its inability to secure a teacher or teachers, or because of lack of facilities, the board may maintain the school or schools of the district elsewhere than within the district. . . ." Effective January 1, 1988, section 37100 was repealed. (Stats. 1987, ch. 1452, § 216.) However, the Legislature declared with respect to its repeal , as well as the repeal of other sections of the Education Code: "The Legislature finds and d eclares that, in 1972, the peopl e of the state adopted an amendment to Section 14 of Article IX of the California Constitution, which permits the Legislature to authorize the governing boards of school districts to ini tiate and carry on any programs, activities, or to otherw ise act in any manner which is notin conflict with the laws and purposes for which school districts are established. "It is the intent of the Legislature, in enact ing this act, to implement more fully, for the school districts . . . in Californi a, the intent of the people in adopting the amendment of Section 14 of Article IX of the Californi a Constitution. The Legislature further finds and declares that, in order to do so, it is necessary to amend or re peal many provisions of the Education Code.

" Whenever in this act a power, authorizati on, or duty of a school district governing board . . . is repealed . . , it is not the intent of the Legislature to prohibit the board . . . from acting as prescribed by the deleted provisions. Rather, it is the intent of the Legislature, that the school district governing board s...shall have the power, in the absence of other legislation , to so act under the general authority of Section 35160 of the Educati on Code." (Stats. 1987, ch. 1452, § 1; italics added.) Thus, while it was not the Legisl ature's intent to prohibit a sc hool district from acting as prescribed in a repealed pr ovision such as section 37100 (s ee 73 Ops.Cal.Atty.Gen. 183, 187-188 (1990)), and notwithstanding the rule of liberal constructi on (§ 35160.1, subd. (b)), it remains clear that a school district ma y act only "in the absence of ot her [conflicting] legislation." In addition to the grant of general author ity contained in section 35160, the Legislature enacted section 35271, subdivision (a), operative June 30, 1993, as follows: "The governing board of any sc hool district may ac quire property, construct buildings, and maintain classes outside its boundaries on site s immediately adjacent to school sites of the district within its boundaries."While section 35160 provides that a school district may act in any manner "which is not in conflict with or inconsistent w ith . . . any law," does secti on 35271 contain a limitation that supersedes the general authority of the former statute? In examining the language of section 35271, we follow established principles of statutory construction. "When interpreting a statute our primary task is to determine the Legislature's intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent. [Citation.]" ( Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826.) "Every word, phrase, and sentence in a statute should, if possi ble, be given significance. [Citation.]" ( Larson v. State Personnel Bd. (1994) 28 Cal.App.4th 265, 276-277.) Moreover , we note that with respect to a statutory grant of authority, ther e is an implied negative: no power may be exercised which is in excess of the granted authority. ( Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196; 79 Ops.Cal.Atty.Gen. 128, 129 (1996); see, e.g., Huntington Park Redevelopment Agency v. Martin (1985) 38 Cal.3d 100, 105.) Here, section 35271 contains both a specific gr ant of authority as well as a specific limitation upon the grant of author ity. It authorizes a school di strict to "acquire property, construct buildings, and maintain classes outside its boundaries . . . ." Included within this authorization are all of the el ements necessary for the estab lishment of a school. By way of limitation, however, the district may do so ". . . on sites immediately adjacent to school sites of the district within its boundaries." The implied ne gative is that a school di strict may not establish a school outside its boundaries on a site not immediately adjacent to a school site within its boundaries. Footnote No. 2 To do so would be in conflict a nd inconsistent with section 35271 and therefore unauthorized. We conclude that a school district may establish a school within th e boundary of another district only if it is located upon a site immediately adjacent to a sc hool site within the district.

2. Charter Schools in Other Districts The second inquiry is whether our analysis w ould differ if the school to be established within the boundaries of another district were a charter school. In other words, would the extraterritorial establishment by a school district of a charter school be subject to the site limitation contained in section 35271? We conclude that the st atutory limitation would be inapplicable. The legislative purposes in enacting th e Charter Schools Act of 1992 (§§ 47600-47616; "Act"), authorizing the operation of charter schools throughout the st ate, are set forth in section 47601 as follows: "It is the intent of the Legislat ure, in enacting this part, to provide opportunities for teachers, parents, pupils, and community members to es tablish and maintain schools that operate independently from the existing school district structure, as a method to accomplish all of the following:"(a) Improve pupil learning. "(b) Increase learning oppor tunities for all pupils , with special emphasis on expanding learning experiences for pupils who are id entified as academically low achieving. "(c) Encourage the use of different and innovative teaching methods. "(d) Create new professional opportunities for teachers, incl uding the opportunity to be responsible for the learning pr ogram at the school site. "(e) Provide parents and pup ils with expanded choices in the types of educational opportunities that are available w ithin the public school system. "(f) Hold the schools established under this part accountable for meeting measurable pupil outcomes, and provide the schools with a method to change from rule-b ased to performancebased accountability systems." The Act provides for the establishment of a char ter school by filing a petition, specifications to be contained in a proposed charter, review a nd approval or denial by the district governing board, and grounds for revocation of a charte r. (See 80 Ops.Cal.Atty.Gen. 52, 54 (1997); 78 Ops.Cal.Atty.Gen. 253, 254-255 (1995).) With respectto a charter school's general operations, section 47610 states that a charter school "shall comply w ith all of the provisions set forth in its charter petition, but is otherwis e exempt from the laws governi ng school districts . . ." with specified exceptions not pertinent to this examination. (See 78 Ops.Cal.Atty.Gen. 297, 300 (1995).) In 80 Ops.Cal.Atty.Gen., supra , 54-56, for example, we determined that a charter school would be exempt from the Field Act, which ge nerally governs school dist ricts in the design and construction of school buildings. Footnote No. 3 Similarly, here, a charter school would be exempt from the limitations inherent in section 35271. It is noted in this regard that admission to a charter school may not be determined by the stud ent's place of residence within the state, nor may any student enrolled in the school district be required to attend a charter school. (§ 47605, subds. (d), (f); 78 Ops.Cal.Atty.Gen., supra, 254-255.) These provisions are consistent with our determination that a charter school is not subject to the same cons traint as to location as is a traditional school. Accordingly, we conclude that a charter sc hool, unless constraine d by the terms of its charter, may be established within the geogr aphical boundaries of another school district. 3. Liability for Schools of Another District The final inquiry is whether a school district would be liable for the actions of a school established within its boundaries by another school district. We conclude that it would not be liable in such circumstances.While a school district is generally define d by its geographical boundaries, which forms the basis for the inquiries herein, th e boundaries are jurisdictional a nd not proprietary. Thus, a school district may be liable for the actions of its em ployees during a course of duty, or for injuries caused by dangerous conditions upon the property wher e its facilities are situated or over which it has control, but it would not be liable for the actions of the empl oyees of another district or for injuries sustained upon property not subject to its control. (See, e.g., Gov. Code, § 835; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799; Bartell v. Palos Verdes Penisula Sch. Dist. (1978) 83 Cal.App.3d 492.)

We conclude that a school district would not be liable for th e actions of a school established within its geographical attendance boundaries by another district.

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Footnote No. 1 Unidentified section references hereaf ter are to the Education Code. Footnote No. 2 Whether the State Board of Education may waive the re quirements of section 35271 in a particular case (see § 33050) is beyond the scope of this opinion. Footnote No. 3 As noted in our recent opinion, the Field Act construction requirements would be applicable to a charter school if they were set forth in its charter petition. ( Id ., at p. 55.)