(Ga. L. 1919, p. 288, § 84; Code 1933, § 32-909; Ga. L. 1937, p. 882, § 18; Ga. L. 1946, p. 206, § 1; Ga. L. 1961, p. 35, § 9; Ga. L. 1962, p. 654, § 1; Ga. L. 1979, p. 657, § 1; Ga. L. 1984, p. 373, § 1; Ga. L. 1985, p. 149, § 20; Ga. L. 1999, p. 1236, § 1; Ga. L. 2010, p. 746, § 0.5/HB 703.)
Cross references.- Authority of local boards of education to acquire property for conveyance to board of regents, § 20-3-59.
Law reviews.- For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979).
JUDICIAL DECISIONS
Editor's note.
- In light of the similarity of the statutory provisions, decisions under former Code 1910, § 1551(89), which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.
Section gives to the county boards of education complete ownership of county school property with the right to buy and sell the property. Bailey v. County Bd. of Educ., 213 Ga. 308, 99 S.E.2d 124 (1957).
All property held by trustees legally passed to county board.
- By the Act of 1946 (Ga. L. 1946, p. 206), all property held in any capacity for school purposes by the trustees of any local school district passed by operation of law to and became vested in the county board of education. Duffee v. Jones, 208 Ga. 639, 68 S.E.2d 699 (1952).
In making sales of school property, the board is vested with broad discretion which will not be controlled unless the discretion is manifestly abused. Veal v. Smith, 221 Ga. 712, 146 S.E.2d 751 (1966).
Board may sell at private sale any property for which the board has absolute title.
- County board of education has the power to and may sell at private sale any schoolhouse property for which the board has absolute title when the board finds and by resolution declares that the property is not necessary or convenient for school purposes. But the board has no power or authority under this or any other provision to sell any property which has been conveyed to and accepted by the board, or the board's predecessor in title, in trust for educational purposes, except at public sale after proper leave to sell has been obtained from the superior court. Duffee v. Jones, 208 Ga. 639, 68 S.E.2d 699 (1952).
Board cannot control land given by private parties for specific purpose.
- This section confers no authority upon the board of education of the county to control or to sell and dispose of land which is given by private parties for a specific purpose. Dominy v. Stanley, 162 Ga. 211, 133 S.E. 245 (1926) (decided under former Code 1910, § 1551 (89)).
After bonds issued and sold, board may select school site.
- After a city issued and sold bonds to a given amount for the purpose of erecting a new school building, the board of education of that city had authority to select the site for and to construct the building. Chipstead v. Oliver, 137 Ga. 483, 73 S.E. 576 (1912) (decided under former Code 1910, § 1551 (89)).
Board may possess, control, and expend fund raised.
- Authority to select a school site, in the absence of anything to the contrary in the charter of the city, carries with it, by necessary implication, the power in the board to possess, control, and expend the fund raised by the sale of bonds in the performance of the board's public duty in erecting the building. City of Blakely v. Singletary, 138 Ga. 632, 75 S.E. 1054 (1912) (decided under former Code 1910, § 1551 (89)).
Board has income sources to satisfy judgment and authorized to pay back salary award.- Even though a majority of funds controlled by a school board emanates from the state, the board has sufficient sources of income to satisfy a judgment, or the ability to raise it, as well as the authority to pay an award of back salary without transgressing state law. Davis v. Griffin-Spalding County Bd. of Educ., 445 F. Supp. 1048 (N.D. Ga. 1975).
Board may incur obligation even though contract not completed before members' terms end.
- Board of education may incur a lawful obligation to pay for the purchase or construction of a facility when sufficient funds are on hand for that purpose even though the construction contract may not be fully completed before the end of the term of some or all of the members of that body. Concerned School Patrons & Taxpayers v. Ware County Bd. of Educ., 245 Ga. 202, 263 S.E.2d 925 (1980).
Board may construct physical educational facilities.
- Boards of education have lawful authority to provide for and construct physical education facilities which may incidentally include a field house or related athletic facility. Concerned School Patrons & Taxpayers v. Ware County Bd. of Educ., 245 Ga. 202, 263 S.E.2d 925 (1980).
School districts may contract with, and pay, county for garbage disposal service.
- School districts have the authority and obligation to contract with, and pay for the service provided by, the county in disposing of garbage resulting from the operation of the school lunch program. Fletcher v. Russell, 151 Ga. App. 229, 259 S.E.2d 212, rev'd on other grounds, 244 Ga. 854, 262 S.E.2d 138 (1979).
Board empowered to close school term prior to time originally provided for.
- County board has power, after having specified the duration of a particular school term, to pass a resolution, after the expiration of six months of the term, closing the term prior to the time originally provided for. Board of Educ. v. Thurmond, 162 Ga. 58, 132 S.E. 427 (1926) (decided under former Code 1910, § 1551 (89)).
County commissioners not empowered to bind education board to operate schools for any particular time.
- Board of commissioners of a county has no power to contract with the county board of education as to bind the board of education to operate the schools for any particular time, and the board of education will not be bound by any promise to the board of county commissioners in regard to the length of time the board will operate the public schools at any term. Board of Educ. v. Thurmond, 162 Ga. 58, 132 S.E. 427 (1926) (decided under former Code 1910, § 1551 (89)).
Board has exclusive power to employ teachers.
- County board is empowered to employ teachers in the school under the board's jurisdiction, and this duty is exclusively vested in the board. Orr v. Riley, 160 Ga. 480, 128 S.E. 669 (1925) (decided under former Code 1910, § 1551 (89)).
Equity will not entertain jurisdiction of controversy as to location of site of school building, but will remand the parties to the parties' legal remedy. Meadows v. Board of Educ., 136 Ga. 153, 71 S.E. 146 (1911); Edge v. Garrett, 138 Ga. 93, 74 S.E. 758 (1912) (decided under former Code 1910, § 1551 (89)).
Cited in Usher v. State, 54 Ga. App. 345, 187 S.E. 881 (1936); Weeks v. State, 58 Ga. App. 440, 198 S.E. 809 (1938); Smith v. Jefferson County, 201 Ga. 674, 40 S.E.2d 773 (1946); Robinson v. State, 82 Ga. App. 584, 61 S.E.2d 773 (1950); Parker v. Board of Educ., 209 Ga. 5, 70 S.E.2d 369 (1952); Moore v. Wells, 212 Ga. 446, 93 S.E.2d 731 (1956); Ingram v. Doss, 217 Ga. 645, 124 S.E.2d 87 (1962); Oconee County v. Rowland, 107 Ga. App. 108, 129 S.E.2d 373 (1962); Grimes v. Clark, 226 Ga. 195, 173 S.E.2d 686 (1970); Ken Stanton Music, Inc. v. Board of Educ., 227 Ga. 393, 181 S.E.2d 67 (1971); Wright v. Baker County Bd. of Educ., 501 F.2d 131 (5th Cir. 1974).
OPINIONS OF THE ATTORNEY GENERALANALYSIS
General Consideration
Section constitutes plenary grant of authority.
- It is clear that this section was intended by the legislature to constitute a plenary grant of authority. 1948-49 Op. Att'y Gen. p. 101.
Power to manage and control county school systems.- County school superintendent is obliged to comply with and carry out all rules, regulations, and instructions of the county board of education. 1974 Op. Att'y Gen. No. U74-65.
State superintendent authorized to deal with local board when county superintendent suspended.- This section is broad enough to authorize the State School Superintendent to deal with the local board of education and the president of the local board in instances when the county school superintendent is suspended, or when the title to the office is in controversy. 1945-47 Op. Att'y Gen. p. 206.
School boards excluded from incorporating or being members of nonprofit corporations.- While county boards of education are vested with broad powers respecting the management and control of the school systems the boards administer, the general laws pertaining to the creation of nonprofit corporations appear to exclude the possibility of school boards incorporating or being members of nonprofit corporations as a county board of education is not a corporation, partnership, association, or other "person." 1978 Op. Att'y Gen. No. 78-4.
School PropertyAll local school property is subject to power and control of local board of education. 1945-47 Op. Att'y Gen. p. 206.
Comparison of school board's authority to convey school property held in trust and property when title is absolute. 1989 Op. Att'y Gen. U89-16.
Section requires board's discretion on use of school property to be reasonably exercised.- That portion of this section which limits the control of school property to such uses "as they think will best serve the interests of the . . . schools" is construed as requiring the board's discretion, albeit broad, to be reasonably exercised, and should a use be clearly shown to interfere with and be detrimental to the use of a school for public school purposes, the authorization of the use by the board would be an abuse of the board's discretion and illegal. 1963-65 Op. Att'y Gen. p. 401.
County board has authority and power to select, locate, and acquire sites for school buildings in the board's county, according to the board's judgment and discretion, subject only to the approval or disapproval by the State Board of Education upon appeal. 1958-59 Op. Att'y Gen. p. 117.
County board empowered to subsequently make changes and relocations.- When a county board of education has previously selected sites for schools and school building projects, the board has the power to subsequently make changes and relocations of these school sites, and when approved by the State Board of Education these actions become final. 1958-59 Op. Att'y Gen. p. 117.
County board not authorized to acquire land for construction and resale.- County school board is not authorized to acquire land for the purpose of general construction and subsequent resale of the improved property. 1974 Op. Att'y Gen. No. 74-126.
Title to property of abolished district passed to county board.- Title to school property located within the county and recorded as being owned by the trustees of an abolished school district passed by operation of law to the county board of education upon the abolition and merger of the local school district into the county system. 1954-56 Op. Att'y Gen. 265.
Board may accept building or property under lease as gift from owner.- County board of education has the clear authority to accept any building or property that the board may now or in the future have under lease as a gift to the county school system from the owner. 1950-51 Op. Att'y Gen. p. 39.
County board may accept voluntary contributions from pupils.- It would not be illegal for a local board of education to accept voluntary contributions from pupils and use these contributions to purchase supplies and workbooks that would otherwise be unavailable because of budgetary difficulties. 1954-56 Op. Att'y Gen. p. 256.
County board of education is proper agency to determine use of timber on school property. 1948-49 Op. Att'y Gen. p. 110.
Board required to maintain buildings in as good a state of repair as facilities permit.- This section clearly charges the county board of education with the duty to care for school buildings and this requirement certainly would include the maintenance of school buildings in as good a state of repair as the facilities available to the board permit. 1948-49 Op. Att'y Gen. p. 108.
Expenditure of school tax funds for repair, maintenance, and upkeep of leased premises is authorized. 1960-61 Op. Att'y Gen. p. 170.
Board may pay for cost of street or sidewalk paving on assessment basis.- County board of education may pay the board's part of the cost of street or sidewalk paving in a municipality, provided the cost is paid on an assessment basis. 1948-49 Op. Att'y Gen. p. 99.
State, county, and city cannot give or donate property to private individual or institution.- Neither the State of Georgia, a Georgia county, or a Georgia city can constitutionally give or donate school property to a private individual or institution; outright sale of such school property with no strings attached is permissible. 1958-59 Op. Att'y Gen. p. 175.
County school board cannot give or donate property to private individual or institution.- While the discretionary powers of a county school board are exceedingly broad, it is quite clear that this section does not authorize a county school board to make a "gift" of school property to a citizen or group of citizens; the power of disposition, other than to a municipality of property lying within the municipality, is limited to the "sale" of such property after the board has found (presumably by resolution) that the property is either unnecessary for, or inconvenient to, school purposes; the word "sale," of course, normally contemplates the payment of money in exchange for the transfer of property. 1963-65 Op. Att'y Gen. p. 628.
Boards' discretion regarding control, management, and disposition of school property.- This section vests very broad discretionary power in local boards of education as regards control, management, and disposition of schoolhouses and school property, and the propriety of and manner of sale of this property is a matter as to which the local board should exercise proper discretion and judgment on behalf of the citizens and taxpayers of the county. 1960-61 Op. Att'y Gen. p. 172.
Board authorization to sell particular property.- To determine whether a county board of education has authority to sell any particular school property in a particular manner and to deposit the proceeds of sale in the general fund rather than in a special trust account for special or general capital outlay purposes will depend upon the facts related to the property in question, including the property's source or the source of the funds used for the property's purchase or construction, and upon the facts related to the need for other capital improvements or expenditures. 1969 Op. Att'y Gen. No. 69-334.
Conveyance by private sale.- County board of education may convey property no longer needed for school purposes by a private sale. 1982 Op. Att'y Gen. No. 82-31.
Since O.C.G.A. § 20-2-520 vests title to school property in the county boards of education, as opposed to the counties themselves, public sale requirements of O.C.G.A. § 36-9-3, which apply only to county property, do not govern disposition of such property. 1982 Op. Att'y Gen. No. 82-31.
Board may sell schoolhouse site when site has become "unnecessary or inconvenient."- Plenary power granted to the board to make all arrangements necessary to the efficient operation of the schools seems to be restricted somewhat when it is to be exercised for the purpose of selling schoolhouses or other property. The board may sell schoolhouse sites "when, in the opinion of the county board . . . [the] site has become unnecessary or inconvenient," and the determination of whether or not the site has become "unnecessary or inconvenient" is left entirely to the opinion of the board; this determination is entirely a discretionary matter and unless the board flagrantly abuses the board's discretionary power, the property may be used as the board sees fit. 1948-49 Op. Att'y Gen. p. 101.
Money received from sale of schoolhouse site.- County board of education can sell any school building when the board by resolution declares that the building is not necessary or convenient for school purposes, but all money received from the sale can be used by the board for school purposes and none other, i.e., the board cannot legally make a contribution to a health center nor buy any property which is not to be used for school purposes. 1954-56 Op. Att'y Gen. p. 223.
Sale price for school property lies within the discretion of the county board of education. 1960-61 Op. Att'y Gen. p. 173.
Board not authorized to sell and buy back recently erected school building.- County board of education is not authorized to sell a recently erected school building and at the same time buy back the same building, to be paid for over a period of years, to obtain funds with which to equip the building and other buildings in the school system. 1952-53 Op. Att'y Gen. p. 72.
Board may improve football field only when property's title in board.- County board of education can expend school funds on improving a football field only when title to the property is in the board (this would exclude a nonprofit athletic association); the management of the property would be under the county board of education or the board's authorized agent. 1954-56 Op. Att'y Gen. p. 245.
Construction of gymnasiums is a proper subject for the expenditure of school funds. 1973 Op. Att'y Gen. No. U73-61.
Gymnasium construction authorized.- County board of education can expend school funds for the construction of a gymnasium only when title to the property is in the board (this would exclude a nonprofit athletic association); the management of the property would be under the county board of education or the board's authorized agent. 1957 Op. Att'y Gen. p. 117.
County board of education could legally levy a tax to build, purchase, or acquire school buildings. 1945-47 Op. Att'y Gen. p. 170.
Section gives county board authority to build schoolhouses by tax upon all property within county outside of independent school systems; schoolhouses are public buildings and the county board of education can recommend the levy of a tax for the building of schoolhouses when the board does not create a debt which extends beyond the current year for which the tax is levied. 1945-47 Op. Att'y Gen. p. 136.
State board may impose "competitive bidding" requirement for school construction.- State law does not impose a "competitive bidding" requirement upon local school boards in connection with the construction of school facilities; however, the State Board of Education may impose this requirement upon local school boards if and when state funds are involved in the project. 1977 Op. Att'y Gen. No. 77-32.
Board authorized to lease school sites and expend money on leased property.- It would seem from this section that the county board has the authority to lease school sites and, in the absence of any statutory prohibition and in the presence of the plenary grant of authority to the county boards of education, the county boards may expend tax money on leased property. 1948-49 Op. Att'y Gen. p. 112.
Board not authorized to lease school property to private citizens.- County board of education has no authority to lease school property, no longer needed for school purposes, to private citizens to be used as a recreation center. 1958-59 Op. Att'y Gen. p. 98.
Use by nonprofit organizations without rent.- Local boards of education may not allow nonprofit organizations to use empty school buildings without the payment of rent, except for certain educational purposes that do not interfere with the primary use of the school building. 1984 Op. Att'y Gen. No. 84-37.
After school care programs.- Department of Human Resources may not license "latch key" or "after school" care programs operated by county school systems on their premises. 1985 Op. Att'y Gen. No. 85-11.
County board of education may lawfully lease school buildings or facilities from the county; such a lease is subject to attack, however, if the lease is so unreasonable as to constitute a gross abuse of the board's discretion. 1973 Op. Att'y Gen. No. 73-14.
Lease of property for school purposes.- Under this section, a county board of education is authorized to lease on a year to year basis with a renewal clause a building or buildings for common school purposes from the county when in the board's discretion it is deemed to be in the best interest of the common schools of the county; further a county board of education would be authorized to specify the type and design of construction of a building that the board would be agreeable to rent or lease. 1950-51 Op. Att'y Gen. p. 39.
Counties and school districts have authority under O.C.G.A. §§ 20-2-520 and36-9-3(c) to enter into intergovernmental contracts in which the county leases real property to the school board for use as a site for a public school or other educational purpose. 1998 Op. Att'y Gen. No. 98-13.
Distinction between lease involving compensation and permit under this section.
- There is one significant distinction between the situation of a lease not exceeding five years under Ga. L. 1956, p. 10, § 1 (see now O.C.G.A. § 20-2-600) (with compensation involved) and a mere permit under former Code 1933, § 32-909 (see now O.C.G.A. § 20-2-520) (no monetary consideration involved): when the local board enters into a lease agreement under the former section, such as the lease of a particular classroom to a private teacher during specified hours, the lease will be binding upon the board during the term of the lease even though it might to some extent interfere with the use of the classroom for school purposes; when, however, there is only a "free of charge" permission to teach private lessons, such use by a private teacher or private lessons could become illegal if the use interfered with the primary use of the school building or any room or part thereof for public education purposes. 1963-65 Op. Att'y Gen. p. 401.
Board may mortgage buses to retire debts of school system.- Inasmuch as the county boards of education are vested with the title and control of all school property and have been granted the power to borrow money, these plenary grants of authority are sufficient to authorize the board to use the school property as the board may see fit and, therefore, a county board of education may mortgage school buses to retire debts of the county school system. 1948-49 Op. Att'y Gen. p. 104.
Board may deposit funds in building and loan association.- There is no statutory prohibition against depositing school funds in a building and loan association and it therefore seems to be within the plenary authority of the county board of education to do so. 1948-49 Op. Att'y Gen. p. 108.
Attendance and TransportationSection is sufficient authority for board to arrange and delimit attendance areas in the county of the board's jurisdiction, excluding of course independent school districts within the county. 1948-49 Op. Att'y Gen. p. 100.
Board authorized to consolidate school districts.- County board of education is vested with the authority to consolidate schools when, in the opinion of the board, the consolidation is in the best interests of the schools and the pupils of the county; this is a duty and responsibility which is vested in the school board rather than the State Board of Education. 1948-49 Op. Att'y Gen. p. 502.
Ages of children who may be taught matter addressed to board.- Minimum and maximum ages of children who may be taught in the public schools is a matter which addresses itself to the local boards of education. 1965-66 Op. Att'y Gen. No. 65-10.
Arrangements necessary to schools' efficient operation.- Phrase "arrangements necessary to the efficient operation of the schools" must include those methods required to safely convey pupils from their homes to the classroom and back, including utilization of a student safety patrol. 1963-65 Op. Att'y Gen. p. 423.
Agreement whereunder board leases school buses for single year is not on the agreement's face illegal merely because the agreement also gives the school board three one-year renewal options coupled with a purchase option exercisable at the end of the final renewal period; such an agreement might be subject to attack, however, if the yearly "rental payments" are so grossly in excess of what reasonably could be considered to be the "fair rental value" of the buses as to lead to a conclusion that the transaction, while disguised as a lease plus purchase option, is essentially a "conditional sale." 1965-66 Op. Att'y Gen. No. 65-33.
Board has right to use buses for purposes serving interests of schools.- County board is not restricted to the technical use of school buses for transporting pupils and school employees to and from the public schools; the county board would have the right to use the school buses for school purposes which serve the interest of the common schools, but the board would not have the right to use school buses for any purposes which would not serve the interest of the common school. 1948-49 Op. Att'y Gen. p. 88.
School buses may be used for athletic contests or other educational programs.- County board of education would have the right and power to use school buses for the purpose of transporting school children to and from athletic contests participated in by the public schools of the state or for such other educational programs adopted and used by the public schools for the purpose of educating school children. 1948-49 Op. Att'y Gen. p. 88.
Board may provide that no bus shall transport pupils to any unassigned attendance area.- Under the general regulatory powers granted county boards of education, a county board, when the board deems it to be in the best interest for and for the most efficient operation of the schools of the county, may by regulations duly adopted provide that no school bus under the jurisdiction of the county board of education shall transport pupils to any attendance area other than areas to which the school bus has been assigned by the board. 1950-51 Op. Att'y Gen. p. 272.
RESEARCH REFERENCES
Am. Jur. 2d.
- 68 Am. Jur. 2d, Schools, §§ 58 et seq., 64, 78 et seq., 91 et seq., 104, 105.
C.J.S.- 78 C.J.S., Schools and School Districts, §§ 8, 9, 138 et seq., 508 et seq., 523 et seq., 535 et seq., 560 et seq. 78A C.J.S., Schools and School Districts, § 789 et seq.
ALR.
- Power to require construction or repair of school buildings, 1 A.L.R. 1559.
Gift for public school as a valid charitable gift, 48 A.L.R. 1126.
Gift for lectures as a valid charitable gift, 48 A.L.R. 1142.
Extent of power of school district to provide for the comfort and convenience of teachers and pupils, 52 A.L.R. 249.
Power of school or local authorities as to granting leases of school property, 111 A.L.R. 1051.
Particular purposes within contemplation of statute authorizing issuance of bonds or use of funds by school district for specified purposes, 124 A.L.R. 883.
Title to buildings when school lands revert for nonuse for school purposes, 28 A.L.R.2d 564.
Use of public school premises for religious purposes during nonschool time, 79 A.L.R.2d 1148.
Zoning regulations as applied to public elementary and high schools, 74 A.L.R.3d 136.