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October 20, 1970
Honorable George W. Scott
State Representative, 46th District
2530 N.E. 105th Place
Seattle, Washington 98125
Cite as: AGLO 1970 No. 138
We acknowledge receipt of your recent letter inquiring as to the applicability of the recall provisions of our state Constitution and statutes to (a) the members of a school board, and (b) a school superintendent.
The recall provision of our state Constitution is contained in Amendment 8 thereof, which reads as follows:
"Every elective public officer of the state of Washington expect [except] judges of courts of record is subject to recall and discharge by the legal voters of the state, or of the political subdivision of the state, from which he was elected whenever a petition demanding his recall, reciting that such officer has committed some act or acts of malfeasance or misfeasance while in office, or who has violated his oath of office, stating the matters complained of, signed by the percentages of the qualified electors thereof, hereinafter provided, the percentage required to be computed from the total number of votes cast for all candidates for his said office to which he was elected at the preceding election, is filed with the officer with whom a petition for nomination, or certificate for nomination, to such office must be filed under the laws of this state, and the same officer shall call a special election as provided by the general election laws of this state, and the result determined as therein provided." (Section 33.)
"The legislature shall pass the necessary laws to carry out the provisions of section thirty-three (33) of this article, and to facilitate its operation and effect without delay: Provided, That the authority hereby conferred upon the legislature shall not be construed to grant to the legislature any exclusive [[Orig. Op. Page 2]] power of law-making nor in any way limit the initiative and referendum powers reserved by the people. The percentages required shall be, state officers, other than judges, senators and representatives, city officers of cities of the first class, school district boards in cities of the first class; county officers of counties of the first, second and third classes, twenty-five per cent. Officers of all other political subdivisions, cities, towns, townships, precincts and school districts not herein mentioned, and state senators and representatives, thirty-five per cent." (Section 34.)
Pursuant to the second section of this Amendment, the legislature has enacted a comprehensive set of statutes dealing with the recall of elective officers. See, chapter 29.82 RCW, a xerox copy of which is enclosed herewith. We would also refer you to the recent decision of the Washington Supreme Court in Skidmore v. Fuller, 59 Wn.2d 818, 370 P.2d 975 (1962), which we have also xeroxed and are enclosing, for an illustration of the applicability of these constitutional and statutory provisions to an elective school board.
However, as is manifest from the plain wording of the constitutional amendment, the recall is only available against public officers holding elective positions. Accordingly, the recall is not available as a means of removing a school superintendent ‑ for a school superintendent serves by virtue of an appointment by the school board of his district rather than by virtue of an election to office by the residents of the district. See, in general, RCW 28A.58.137, et seq. Under the provisions of RCW 28A.67.070, a superintendent is expressly mentioned among the classifications of school district employees who are governed by the so-called "continuing contract" law, and thus his removal is governed by the provisions of this statute.
It is hoped that the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Assistant Attorney General