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Official Opinion 98-13

Official Opinion 98-13

July 28, 1998
To: 

State School Superintendent

Re: 

Counties and school districts have authority 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.

You have asked whether on or after July 1, 1998, Georgia law will allow a local school system to build a school on land that is leased from the county government. In my opinion it does. It is my understanding that you are referring to 1998 Ga. Laws 1036, which adds Subsection (c) to O.C.G.A. § 36-9-3. That Code Section deals generally with the authority of counties to sell or dispose of its real property and Subsection (c) adds a grant of authority to counties or consolidated governing authorities to grant, sell or lease land to the local board of education “for use as a site for a public school or other educational purpose.”

It appears that the above statutory change was enacted so that counties could take advantage of the constitutional provision for intergovernmental contracts found at Art. IX, Sec. III, Para. I of the Georgia Constitution. This section of the Constitution provides that any of several governmental units, including counties and school districts:

may contract . . . with each other or with any other public agency, public corporation, or public authority for joint services, for the provision of services, or for the joint or separate use of facilities or equipment; but such contracts must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide.

The above provision requires that the intergovernmental contract deal with a subject in which each governmental unit has authority to contract. See McLucas v. State Bridge Bldg. Auth., 210 Ga. 1 (1953). School districts have authority to “purchase, lease, or rent school sites.” O.C.G.A. § 20-2-520. Therefore, both counties and school districts have statutory authority to enter into an intergovernmental contract in which the county leases the land to the school district so that the school district may build a school. Based on the foregoing, it is my official opinion that counties and school districts have authority 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.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General