STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6121

January 21, 1983

STATE BOARD OF EDUCATION:

Vote needed for final action upon a property transfer appeal

Affirmative action by a vote of five members of the State Board of Education is required to take final action upon an appeal from a decision of an intermediate board of education denying a transfer of property from one local school district to another.

Phillip E. Runkel

Superintendent of Public Instruction

Michigan National Tower

Lansing, Michigan

You have requested my opinion on a question which may be phrased as follows:

The School Code of 1976, 1976 PA 451; MCLA 380.1 et seq; MSA 15.4001 et seq, Sec. 971, authorizes an appeal to the State Board of Education in property transfer cases from the action or determination of the intermediate school board or joint intermediate school boards. The section also authorizes an appeal to such board if the intermediate school board fails to take action within the time limit established under 1976 PA 451, supra, Sec. 951. The section then provides:

The section further provides that the board may confirm, modify, or set aside the order of the intermediate school board or the joint intermediate school boards.

In the situation underlying your opinion request, the intermediate board of education denied the property transfer. On appeal to the State Board of Education, a motion to confirm the action of the intermediate board of education and deny the transfer was approved by a vote of four to one. Pursuant to 1964 PA 287; MCLA 388.1001 et seq; MSA 15.1023(1) et seq, Sec. 4, an affirmative vote by a majority of the members serving on the State Board of Education is required to transact business. The board is composed of eight members. Const 1963, art 8, Sec. 3. Having received only four votes, the motion did not carry. Accordingly, the question pending is whether the four to one vote of the State Board of Education is a decision of the board confirming the action below.

1976 PA 451, Sec. 971, supra, authorizes the State Board of Education to confirm, modify, or set aside the order of the intermediate board. This would seem to clearly contemplate an affirmative action by the State Board of Education. This conclusion is bolstered because the section authorizes an appeal to the State Board under some circumstances without any decision being reached by the intermediate board and because the action or determination of the intermediate board, if any, is suspended during the pendency of an appeal. In the absence of any decision by the intermediate board, the matter obviously could be concluded only by a decision of the State Board of Education. Similarly, the suspension of the action of an intermediate board during the pendency of an appeal required that the appeal be ultimately concluded in some affirmative manner.

1964 PA 287, supra, Sec. 10, provides that the board 'may determine the appeal or order a hearing by it of the appeal. . . .' This section again would appear to clearly require an affirmative action or determination. In addition, determination of appeals in property transfer cases is one of the State Board of Education's specific duties. Determination of such appeals clearly is a portion of the business which the State Board may perform. As noted above, pursuant to 1964 PA 287, supra, Sec. 4, an affirmative vote by a majority of the members serving on the State Board of Eduction is required to transact business.

It is my opinion, therefore, that affirmative action by a vote of five members of the State Board of Education is required to take final action upon an appeal from a decision of an intermediate board of education denying a transfer of property from one local school district to another.

Frank J. Kelley