Request By:
Honorable Nelson D. Rodes, Jr.
Attorney at Law
Central Kentucky Federal Building
Danville, Kentucky 40422
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General to render an opinion as to whether the Danville Independent School District can lease to a private corporation six outdoor hardsurface tennis courts together with adjacent parking area from October 15 through April 30 of each year for a period of five years, with options to renew for two additional five-year periods. You enclosed with your letter a copy of the proposed lease concerning this matter.
The proposed agreement provides in part that the private corporation as lessee would erect a "bubble" enclosure over the six tennis courts to allow use of the courts for private gain during the winter months. The lessee would remove the "bubble" on April 30 of each year and the school system would then have uninterrupted use of its courts during the period of May 1 through October 15 of each year.
The only consideration the school system would receive for the lease of the six courts during the time provided in the lease is one dollar per year plus the school system would be allowed the free use of the courts for its tennis team, physical education classes, and for allotted free public use at times to be agreed upon between the school system and lessee.
Your specific question relative to this matter is whether KRS 162.050 or any other applicable law permits the Danville School District to enter into such a lease agreement for the consideration noted with the private, for profit, corporation.
KRS 162.010 provides that "The title to all property owned by a school district is vested in the commonwealth for the benefit of the district board of education." School property is to be used for school purposes and each local board of education is given the power and duty of "control and management of . . . all public school property of its district and may use such . . . property to promote public education in such ways as it deems necessary and proper." KRS 160.290(1). For the reasons stated below, it is the opinion of this office that there is no legislative authorization for an agreement such as is in issue herein.
You noted the provisions of KRS 162.050. This statute authorizes each local board of education to "permit the use of the schoolhouse, while school is not in session, by any lawful public assembly of educational, religious, agricultural, political, civic or social bodies under rules and regulations which the board deems proper." See
Hall v. Shelby County Board of Education, Ky., 472 S.W.2d 489 (1971). This statute is limited to the use of the "schoolhouse" when "school is not in session" by a "lawful public assembly. " The nature of the agreement in question does not come within the scope of this statute.
We believe it is also clear that the agreement under consideration does not come within the scope of KRS 160.293. This statute permits an agreement by a local board of education with a public agency for the development and maintenance on school property of recreational facilities for school and community purposes.
Thus, the permissibility of a local board of education entering into such an agreement as proposed concerning the schools' tennis courts has to be viewed under the plenary powers of the board as provided in KRS 160.290, noted earlier. The school board must exercise its authority in such a manner so that the interest of the public common schools in its district is served, or at least is not destroyed or diminished by its actions. There should be no questioning of a school board's authority to lease its property that has been declared surplus and is no longer required for school purposes. This, it must be noted, is not the same issue as when school property is just not presently being used for school purposes. See OAG 60-1018, copy attached. If the property has been declared surplus, the school board would have the authority to lease the property just as it could dispose of the property. See the property disposal regulation of the State Board of Education, 702 KAR 4:090.
The property, the subject of the proposed agreement, is very much presently being used for school purposes. The agreement would permit this property which is to be used for school purposes to be partly diverted to a possession or use exclusively private. The private use of the school property would definitely interfere with the public's use. The school board would be arbitrarily selecting a private tenant as a user for gain of the public school facilities. The agreement would obligate the school to maintain the facilities, tennis courts and parking area, recognizing the increased use could bring on an increased need for maintenance; and the expenditure for the maintenance which would benefit a private, for profit, corporation would have to come from public common school funds and such an expenditure could not meet the test of "educational purpose" within the meaning of Section 184 of the Kentucky Constitution. See