STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6059

April 22, 1982

SCHOOLS AND SCHOOL DISTRICTS:

Jurisdiction of intermediate board of education to transfer territory from one school district to another

The board of education of an intermediate school district is without jurisdiction to consider a petition to transfer territory located in the school district to which transfer is sought at the time the petition for transfer is filed.

Honorable Phil Arthurhultz

State Senate

The Capitol

Lansing, Michigan 48909

You have requested my opinion concerning the authority of an intermediate school district board of education to transfer certain territory from one school district to another school district pursuant to the School Code of 1976, 1976 PA 451, Sec. 951 et seq; MCLA 380.951 et seq; MSA 15.4951 et seq. On November 24, 1980 the Oceana Intermediate Board of Education approved the transfer of certain territory from the Hart School District to the Pentwater School District as provided in the School Code of 1976, Sec. 951, supra. Some residents residing in the transfer area, in accordance with the School Code of 1976, supra, Sec. 971, timely appealed the decision of the Oceana Intermediate Board of Education to the State Board of Education and the State Board of Education, on October 7, 1981, modified the action of the Oceana Intermediate Board of Education by approving the transfer of a smaller area than had been transferred below and ordered the transfer from the Hart School District to the Pentwater School District to become effective June 30, 1982. The decision and order of the State Board of Education was not appealed.

Now, prior to the effective date of the transfer, some residents of the Hart School District who reside in the transfer area desire to file petitions with the Oceana Intermediate School District for the purpose of having their property transferred 'back' to the Hart School District. Your inquiry is whether the Oceana Intermediate Board of Education would have the authority to entertain and grant such petitions prospectively where the involved territory will not be transferred from the Hart School District to the Pentwater School District until June 30, 1982.

In the School Code of 1976, Sec. 951, supra, the Legislature has provided:

This statutory provision confers jurisdiction upon an intermediate board of education to entertain a petition to transfer property presently located in one school district to another school district, but only if the property to be transferred is contiguous to the school district to which transfer is requested. School District No 3, Mt. Haley Twp v State Board of Education, 364 Mich 160, 165; 110 NW2d 821, 823 (1961). Thus, clearly the property to be transferred may not already be located in the school district to which transfer is sought. The Legislature has not conferred jurisdiction upon an intermediate board of education to entertain a petition to transfer property to a school district in which such property is presently located at the time the petition is filed.

Prior to June 30, 1982 the property in question remains a part of the territory of the Hart School District. Based on that fact, the conclusion is compelled that the School Code of 1976, Sec. 951, supra, does not confer subject matter jurisdiction upon the Oceana Intermediate Board of Education, prior to June 30, 1982, over any petitions that may be filed to transfer property presently located in the Hart School District 'back' to that school district. The lack of subject matter jurisdiction precludes the intermediate board of education from taking any action with regard to any such petitions except dismissing them. See Fox v Board of Regents of the University of Michigan, 375 Mich 238; 134 NW2d 146 (1965).

It is my opinion, therefore, that pursuant to the School Code of 1976, Sec. 951, supra, an intermediate board of education is without authority to consider a petition to transfer property presently located in the school district at the time the petition for transfer is filed.

Frank J. Kelley