Politics

AG Rutledge: Summary of Opinions Released

Opinion Number: 2021-052 Requestor:   Collins, Andrew The Honorable

Q1) Is a school district required to engage in any public bidding or any other procurement process in connection with its execution of a Project development agreement with a Developer? Q2) Because a private Developer will be constructing the Project, must the Developer follow any public bidding or procurement laws? Q3) Is a school district required to engage in any public bidding or any other procurement process as a condition precedent to its execution of a Project lease agreement with a Developer? Q4) With regard to the above three questions, if applicable, what are the public bidding or other procurement processes that the school district must follow? Q5) Is a Developer required to engage in any public bidding or any other procurement process as a condition to Developer’s construction of a Project and granting a leasehold interest in the Project to a school district pursuant to a lease agreement? Q6) If so, what are the applicable public bidding or other procurement processes that the Developer must follow? Q7) Must a Project Developer comply with statutory and constitutional provisions applicable to the school district? Q8) Does a school district possess the statutory and constitutional right and power to enter into a Project lease agreement with a Developer? Q9) If not, what are the statutory and/or constitutional provisions that prohibit or limit the school district’s right and power to enter into such a Project lease agreement? Q10) Must a Developer participate in any public bidding process in connection with the Developer’s subsequent sale and assignment of a Project lease agreement to a third party? Q11) Do any applicable statutory or constitutional provisions prohibit a Developer from leasing certain parts of a Project to third parties for non-school district purposes, during summer months and during non-school hours with the express prior consent and approval of the school district? Q12) Can a school district convey improved real property to a Developer for nominal cash consideration pursuant to an agreement whereby the Developer will construct material improvements thereon and lease the improvements back to the school district? Q13) If not, what are the statutory and/or constitutional provisions that prohibit or limit the school district from selling improved real property to a Developer? Q14) Can a school district acquire a leasehold interest in a Project from a Developer in accordance with applicable statutory and constitutional provisions? Q15) If not, what are the statutory and/or constitutional provisions that prohibit or limit the school district from leasing a Project from a Developer? Q16) Do any statutory or constitutional provisions exist that would prohibit the Developer from entering into a third-party property and facilities management contract with regard to a Project? Q17) If a Project lease agreement contains an express provision pursuant to which the school district would have the right to terminate the lease agreement at any time and without any penalty, would the school district have the right to exclude its Project lease liability as long-term indebtedness on the School district’s balance sheet and included within the school district’s debt ratio calculations as provided by the provisions of Act 2177?  RESPONSE: Please review the published opinion for responses to these questions.

Opinion Number: 2021-074 Requestor:   Hammer, Kim D. The Honorable

Q1) If a guideline is issued in place of a rule or mandate, does that guideline carry the same force of law that a rule or mandate carries, specifically with respect to punitive actions that may be taken against a public school that fails to follow the guideline?  Q2) In the absence of a rule or mandate, if a public school develops an official school district policy by taking into consideration some, but not all, guidelines, is the public school subject to punitive action for not explicitly following the guidelines?  RESPONSE:  No, guidance documents do not have the same force and effect as a properly promulgated rule.  School districts are, however, required to follow rules issued by the Arkansas Department of Health.

For a full-text version of this or other Attorney General Opinions, visit www.ArkansasAG.gov/opinions

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