DISTRICTS ‑- SCHOOLS ‑- BOARD OF DIRECTORS ‑- SPECIAL EXCESS TAX LEVY ‑- AUTHORITY OF DIRECTOR TO REDUCE OR RESCIND AFTER APPROVAL BY VOTERS

DISTRICTS ‑- SCHOOLS ‑- BOARD OF DIRECTORS ‑- SPECIAL EXCESS TAX LEVY ‑- AUTHORITY OF DIRECTOR TO REDUCE OR RESCIND AFTER APPROVAL BY VOTERS.

Where the board of directors of a school district determines that the purposes for which a special excess tax levy was passed by the people are unattainable or that only one of the objectives for which the levy was passed is attainable, the board may by a properly adopted resolution, presented to the board of county commissioners, reduce or rescind the levy.

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                                                               December 20, 1965

Honorable Louis Bruno
State Superintendent of
Public Instruction
Old Capitol Building
Olympia, Washington

                                                                                                                Cite as:  AGO 65-66 No. 60

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office upon a question which we paraphrase as follows:

            May the board of directors, by a resolution presented to the board of county commissioners, reduce or rescind a special levy which was authorized by the voters of the district?

            We answer your question in the affirmative as explained in our analysis.

                                                                     ANALYSIS

            Your question was previously considered by this office in an opinion written to the Honorable Sam R. Buck, Prosecuting Attorney, San Juan County, dated May 29, 1942 [[1941-42 OAG 181]].  In advising Mr. Buck, we said:

            "This is to advise that, in our opinion, the county commissioners should certainly be advised not to make the levy, if, as you say, it is now impossible to accomplish the purpose for which the levy was made.  Such fact should be determined by a resolution of the Board of the district involved, setting  [[Orig. Op. Page 2]] forth the particulars that disclose such fact to be true.  A copy of this resolution should be presented to the commissioners with a request that the levy not be made.  It is our view that such a resolution being before the commissioners is not only sufficient authority for the commissioners to not make the special levy involved, but probably would be such evidence as would take away any authority of the commissioners to make such levy."

            Clearly the conclusions stated above are based upon the fact that the passage of a special levy does not impose upon the district a mandatory obligation to make said levy if it would be impossible to accomplish the stated purposes.  This conclusion is based upon the basic principle of tax law which, simply stated, is that it is contrary to public policy and unlawful for a taxing unit to levy taxes which are greater than those needed to satisfy the monetary needs of the municipal corporation or which would create an accumulated surplus without legislative sanction.  See,Pacific First Federal Savings, etc. v. Pierce County, 27 Wn.2d 347, 178 P.2d 351 (1947); AGO 53-55 No. 178 [[to Prosecuting Attorney, Pacific County on December 3, 1953]]; and our opinion to the Honorable Henry Wager, Prosecuting Attorney, Kittitas County, dated January 7, 1948 [[1947-48 OAG 75d]].  In the latter opinion we stated:

            "We have found no law requiring that a levy must be made in the amount authorized.  Certainly, such a rule, which would in circumstances such as you picture require the accumulation of an excess, would be contrary to the fundamental principle, frequently repeated, that the taxing unit should not collect money until it is needed.

            "In our opinion since only 12 mills are required, the levy should not be made for the greater amount. . . ."

            Thus it was concluded that a special levy authorization could be reduced by simply collecting only that portion needed.  We believe that the foregoing opinions correctly state the law in this regard.  We therefore conclude that if the board of directors of a school district determines that the purposes for which the levy was passed are unattainable or that only one of the objectives for which the levy was passed is attainable, the district may exercise its authority and reduce or  [[Orig. Op. Page 3]] rescind the levy.

            At this point it appears that it would be appropriate to note the procedure necessary to effectuate such a decision.  In this regard, § 2, chapter 124, Laws of 1965, Ex. Sess., which amends and consolidates the various provisions of Title 28 RCW relating to school district budgets, provides:

            "On or before the thirtieth day of April in each year, the board of directors of all school districts shall prepare the preliminary budget for the ensuing fiscal year.  The budget shall set forth the complete financial program of the district for the ensuing fiscal year, showing in detail in two sections the expenditure program and the sources of revenue from which it is to be financed."

            Section 18 of the same chapter provides:

            "The budget as finally adopted shall constitute the appropriations of the district for the ensuing fiscal year and the board of directors shall be limited in the making of expenditures and the incurring of liabilities to the grand total of such appropriations.  The board of directors shall make no expenditures nor incur any liability for any purpose not provided for in said budget, except for emergencies as hereinbefore provided. . . ."

            These two sections adequately provide for and at the same time limit the expenditures that may be made in any fiscal year.  Those expenditures not stated in the budget will not be figured in levying the necessary taxes.  In this regard, § 13 of the same chapter provides in part:

            "Upon the conclusion of the revision hearing in districts of the first class and upon the conclusion of the county reviewing committee's action in districts of the second and third class, the board or reviewing committee as the case may be shall certify the final budget and the amount to be raised by taxation to the county commissioners for the levying of the district taxes in the manner now provided by law. . . ."

             [[Orig. Op. Page 4]]

            This section points out that only those expenditures certified to the county commissioners will be figured in the levying of the district's taxes.  Thus, if an expenditure is not budgeted by a district, it will not be considered in determining the amount of taxes to be levied by the county commissioners.  This office has on several occasions stated that the board of county commissioners acts in a ministerial capacity in levying taxes for school districts of all classes and that it does not have the authority to question the need for the amounts certified to it.  See, AGO 57-58 No. 230 [[to Prosecuting Attorney, Grays Harbor County on November 26, 1958]], and AGO 49-51 No. 358 [[to Prosecuting Attorney, King County on October 3, 1950]].

            Thus in our opinion the board of directors in preparing the budget should simply not budget for the expenditure previously contemplated, or budget only that portion which can be fully accomplished and indicate in the revenue portion that the excess levy is not to be levied or that only a portion need be levied.  In addition, a resolution of the board explaining said particulars should be presented to the commissioners in the fashion explained in our opinion of May 29, 1942, to the Honorable Sam R. Buck.

            If the existence of the situation contemplated herein is found to exist after the preparation and certification of the final budget but prior to the levy in October, said facts should be made known to the commissioners by resolution in the manner heretofore contemplated with a request that the levy not be made or that it be made only to the extent to which it is necessary to lawfully accomplish one of the purposes for which said levy was passed.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

BRUCE W. COHOE
Assistant Attorney General