SCHOOLS ‑- COUNTY BOARD OF EDUCATION ‑- MEMBER ‑- VOLUNTARY CHANGE OF RESIDENCE FROM ONE BOARD-MEMBER DISTRICT TO ANOTHER ‑- VACANCY.
(1) A member of a county board of education disqualifies himself from holding that office by changing his residence from the board-member district from which he was elected to another board-member district (and school district) wherein another member of the board resides.
(2) Same: Such disqualification of a county board member automatically creates a vacancy in said office.
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April 16, 1963
Honorable Lincoln E. Shropshire
Cite as: AGO 63-64 No. 17
By letter previously acknowledged you requested an opinion of this office on two questions which we paraphrase as follows:
(1) Does a member of a county board of education disqualify himself from holding that office by changing his residence from the board-member district he was elected to represent to a board-member district (and school district) wherein another member of the board resides?
(2) Does disqualification of a county board member automatically create a vacancy on the county board of education?
We answer both questions in the affirmative as explained in the analysis.
We note preliminarily that in your letter you reported Yakima county has been divided for purposes of county board of education elections into five county board-member districts with each district providing one board member. Following an election the five successful candidates for the positions on the county board each came from (reside in) different county board-member districts, and each came from different school districts. You also reported that shortly [[Orig. Op. Page 2]] after the election, one of the members of the board changed his residence so that he now resides in a different county board-member district. As a result he also resides in the same school district as one of the other board members.
The statutory provision relating to county boards of education with respect to membership, board-member districts, terms, elections, and vacancies, is found in RCW 28.20.010 (§ 9, chapter 216, Laws of 1959), the pertinent portions of which read as follows:
"In each county, there shall be a county board of education, which shall consist of five members elected by the voters of the county, one from each of five county board-member districts, such districts to be determined by the county committee on school district organization. Such county board-member districts shall be arranged on a basis of equal population and so that not more than one member of the county board shall come from any one school district:Provided, That in counties having less than five school districts, then the county board-member districts shall be arranged so as to give, as far as practicable, representation, according to equal population: Provided further, That the county committee, at any time that such committee deems it advisable, shall change the boundaries of county board-member districts so as to provide as far as practicable equal representation according to population of such board-member districts.
". . .
"The term of every county board member shall begin on the twentieth day following his election and each county board shall be organized at the first meeting held after a newly elected member takes office. In the event of a vacancy in the board from any cause, such vacancy shall be filled by appointment of a person from the same board-member district by the board of county commissioners or if it is a joint board of education by the boards of county commissioners of the consolidation. The appointed board member shall serve until the next regular election, at which time there shall be elected a member to fill the unexpired term of the member of the board whose position has been vacated."
[[Orig. Op. Page 3]]
RCW 28.20.020 (§ 19, chapter 157, Laws of 1955), indicates the qualifications required of county board members. It is there provided that:
"Every member of the county board of education shall be a qualified voter and a legal resident of the district for which he files, and shall not be an employee of any school district. Every member elected shall take the oath of office required of county officials. The members of the county board shall not be required to give bond."
It will be observed that the qualifications in RCW 28.20.020 refer to "members" of the board. Thus, it is apparent that every member of the county board must be a legal resident of the district for which he files and is elected to represent, in order to meet the established qualifications. A change of residence to another district during a term of office must therefore result in a disqualification of the board member from holding office.
This conclusion is in accord with the following statement found in Annot., Time of Determining Eligibility to Office, 88 A.L.R. 812, at page 828:
"The fact that the candidate is qualified at the time of his election is not sufficient to entitle him to hold the office, if at the time of the commencement of the term of office, or during the continuance of the term, he ceases to be qualified. Eligibility to public office is of a continuing nature, and must subsist at the commencement of the term, and during the occupancy of the office."
For examples of the application of this rule, see, State ex rel. Coe v. Harrison, 217 Ala. 80, 114 So. 905 (1927); andKrulish v. Evans, 16 N.J. 200, 108 A.2d 177 (1954). See, also, AGO 61-62 No. 121 [[to State Parks and Recreation Commission)]], April 23, 1962.
The legislative history and evolution of chapter 28.20 RCW provides additional support, if that is needed, for this conclusion. Prior to the 1959 amendment of RCW 28.20.010 and the 1955 amendment of RCW 28.20.020, the organizational composition of the county school board and the qualifications of its members followed a completely different pattern. Prior to 1959, the county board consisted of the county superintendent of schools, who was ex-officio chairman of the board, and four members appointed by the county superintendent. There was no residency requirement. Appointees could become members even though they resided in the same general area or school district. Prior to 1955, the only qualification required of board members was that they [[Orig. Op. Page 4]] be holders of valid teacher's certificates for this state. Comparison of present statutory provisions with those existing previously indicates that the changes wrought are profound. Creation of board-member districts and imposition of a residence requirement clearly indicates a new legislative purpose to secure local elective representation on the county school board. If a member of the board voluntarily changes his residence to a district wherein another board member resides so that he no longer resides in the district that he was elected to represent, the legislative purpose to insure local elective representation is frustrated.
We have considered AGO 59-60 No. 25 [[to Prosecuting Attorney, Spokane County on March 25, 1959]], which indicated that the term of office of a duly elected and qualified school district director could not be eliminated by the reorganization of districts and changes in district boundary lines resulting in elimination of the directors' district, and we find nothing in that opinion determinative of the question before us.
In the AGO 59-60 No. 25 situation there was no statute prescribing a residential qualification similar to RCW 28.20.020. Consequently it was necessary to consider the ramifications of RCW 42.12.010 in order to determine whether or not a vacancy existed. The presence of RCW 28.20.020 makes it unnecessary to resort to RCW 42.12.010 in this instance.
Furthermore, in the previous situation the district director did not voluntarily do anything to cast a shadow on his qualifications for office. Here we are concerned with a situation where a county board member has changed his residence, and by his own act has removed himself from the county board-member district that he was elected from. A contrary opinion in AGO 59-60 No. 25 would have sanctioned the possibility of a reorganization conspiracy to eliminate an unpopular director. There is no similar danger in this instance because of the voluntary aspects of a change of residence to a different board-member district; hence the reasoning of AGO 59-60 No. 25 is inapplicable to the factual pattern herein under consideration.
It is our conclusion then, that a county board member disqualifies himself from holding office by changing his residence from the board-member district that he was elected to represent to a board-member district wherein another member of the board resides.
Although, for reasons indicated above, reference to RCW 42.12.010 was unnecessary to resolve question No. 1, we feel that it is appropriate to consider cases construing that statute in order to resolve question No. 2. Chapter 28.20 RCW makes no reference as to whether or not disqualification of a county board member automatically creates a vacancy, [[Orig. Op. Page 5]] and there are, so far as we can determine, no court decisions relating to the question. It is therefore necessary to consider the general legal principles applicable to vacation of public offices.
Our supreme court has held that the occurrence of an event designated in RCW 42.12.010 occasions immediate forfeiture of office and creates a vacancy. State ex rel. Guthrie v. Chapman, 187 Wash. 327, 60 P.2d 245 (1936); State ex rel. Zempel v. Twitchell, 59 Wn. (2d) 419, 367 P. (2d) 985 (1962).
It is assumed that the court would adopt the same approach in connection with a vacancy occasioned when a disqualification results under RCW 28.20.020. It is therefore the opinion of this office that disqualification of a county board member automatically results in a forfeiture of office, and a vacancy is created on the county board of education.1/ We have noted that 1927-28 AGO 357 [[to Superintendent of Public Instruction on December 5, 1927]]appears to opine to the contrary. That conclusion was based on supreme court cases that have lost their virility with the passage of time. CompareState ex rel. Lysons v. Ruff, 4 Wash. 234, 29 Pac. 999 (1892), withState ex rel. Zempel v. Twitchell, 59 Wn. (2d) 419, 367 P. (2d) 985 (1962),supra. Recent supreme court cases compel the conclusion that 1927-28 AGO 357 no longer conforms with the law of this state and is for that reason hereby overruled.
In passing it should be noted that we have reviewed the school legislation passed by the 1963 legislature and have found no act which would affect the conclusions expressed above.
We trust that the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
LLOYD W. PETERSON
Assistant Attorney General
Assistant Attorney General
*** FOOTNOTES ***
1/See, State v. Britton, 27 Wn. (2d) 336, 178 P. (2d) 341 (1947) for discussion relating to the powers of a de facto officer.
See, also,Green Mt. Sch. Dist. v. Durkee, 56 Wn.2d 154, 351 P.2d 525 (1960).