AGO 1969 No. 10 - May 27 1969
DISTRICTS - SCHOOLS - DIRECTOR DISTRICTS - BOUNDARIES - VOLUNTARY CHANGE OF RESIDENCE FROM ONE DIRECTOR DISTRICT TO ANOTHER - VACANCY.
In a school district which has been divided into school director districts under RCW 28.57.050, a school director's voluntary removal of his place of residence from one director district to another within the school district does not disqualify him from continuing to serve for the remainder of the term for which he was elected.
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May 27, 1969
Honorable R. DeWitt Jones
301 Court House
Vancouver, Washington 98660
Cite as: AGO 1969 No. 10
This is written in response to your recent request for an opinion of this office on a question which we paraphrase as follows:
In a school district which has been divided into school director districts under RCW 28.57.050, does a school director's voluntary removal of his place of residence from one director district to another within the school district disqualify him from continuing to serve for the remainder of the term for which he was elected?
We answer this question in the negative for the reasons set forth in our analysis.
RCW 28.57.350 specifies the manner of electing school directors in a school district such as is described in your question, as follows:
[[Orig. Op. Page 2]]
". . . When five directors constitute the board, one shall be elected from among the residents of each of the five directors' districts of the school district by the electors of the entire school district, . . ."1/
This procedure is much the same as that provided for in regard to the election of members of a board of county commissioners. See, RCW 36.32.040 and 36.32.050 which provide, respectively, for the nomination of commissioner candidates by district and for their election by the voters of the county at large.
Based upon these statutes (then codified as RRS § 4042 and § 4043) this office, in an opinion dated July 10, 1940, to the prosecuting attorney of Spokane county (copy enclosed), advised that a county commissioner does not vacate his office by moving his place of residence from the commissioner district in which he resided at the time of his election to another commissioner district in the same county. In thus concluding, we reasoned as follows:
"Section 4056, Remington's Revised Statutes provides for the general powers and duties of the county commissioners, and from reading these statutes and the constitutional provision above quoted it seems to me that a county commissioner is a county and not a district officer, as his jurisdiction is in the entire county.
[[Orig. Op. Page 3]]
"Section 9950, Remington's Revised Statutes, is as follows:
"'Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer:
"'* * *
"'4. His ceasing to be an inhabitant of the district, county, town, or village for which he shall have been elected or appointed, or within which the duties of his office are to be discharged: * * *' (Emphasis ours.)2/
"The only question then arising is whether the county commissioner is a county officer or whether he is simply an officer of his district.
"It is our opinion, after a careful reading of the provisions above quoted, that he must be held to be a county officer and that his office is not vacant so long as he continues to reside within the county and is performing the duties of his office. In other words, it is our opinion that a county commissioner does not vacate his office by removing from the district in which he was appointed as long as he continues to reside in his county."
Much earlier, in an opinion dated March 1, 1911, to the prosecuting attorney of Snohomish county, we had reached the same result for the same reasons. Both of these opinions were, in turn, relied upon in AGO 59-60 No. 25, copy enclosed, in which we concluded that the term of office of a duly elected and qualified school district director is not affected by a reorganization of the district resulting in changes in the boundary lines of the various director districts. Here, we expressed our reasoning as follows:
"'The board of directors of a second class school district consists of five members (RCW 28.58.080), one member being elected [[Orig. Op. Page 4]] from among the residents of each of the five director districts by the electors of the entire school district. RCW 28.57.350. . . .
"'From an examination of the statutory provisions relative to the general powers and duties of all class school districts (RCW 28.58.100) and considering the exclusive control which the boards exercise over all the school property in their respective districts, (RCW 28.58.010), we must conclude that the board of directors of a school district are officers of the entire district and are not merely officers of their respective director districts. Accordingly, it is our opinion that no action by the county committee, changing the boundary lines of the director districts can affect the right of any director to hold office until the expiration of his term. Regardless of any change in boundaries of the director districts, the director continues to reside in theschool district for which he was elected and within which the duties of his office are to be discharged and, thus, no vacancy is created. RCW 42.12.010,supra." (Double emphasis supplied.)
Although this opinion involved a realignment of director districts rather than, as here, a voluntary change of residence from one director district to another, we believe its reasoning, as thus stated, is equally applicable to and determinative of your present question.3/ A school director is not [[Orig. Op. Page 5]] merely an officer of his director district any more than a county commissioner is of his commissioner district. Therefore, a school director, by moving his place of residence from one director district to another (for whatever reason) remains just as much a resident of the school district
". . . for which he shall have been elected or appointed, or within which the duties of his office are to be discharged. . . ."4/
as does a county commissioner remain a resident of his county under like circumstances.
A more recent opinion of this office AGO 63-64 No. 17, relating to members of a county board of education is distinguishable from the matter at hand. In that 1963 opinion (copy enclosed), we advised that a member of a county board of education would disqualify himself from continuing to hold that office by changing his residence from the board member district from which he was elected to another board member district (and school district) in which another member of the county board resided. However, there unlike here we had a statute which was regarded as prescribing a continuing residential qualification for office. See, RCW 28.20.020, which reads as follows:
"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."
[[Orig. Op. Page 6]]
AGO 59-60 No. 25,supra, relating to school district directors, was expressly noted and distinguished in the 1963 opinion as follows:
"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."
While no decisions of the Washington court which are precisely in point have been found, we have found two analogous cases which have been decided by the courts of other jurisdictions which we believe are appropriate to note in this opinion.
InState v. Gora, 195 Wis. 515, 218 N.W. 837 (1928), a Wisconsin statute provided that members of a school board should be chosen, under certain circumstances, on the basis of one from each ward of a city which was identical in territory to the district. In a certain city, a member of the board of the school district moved his residence from one ward in the city to another ward. Under a statute which is almost identical to RCW 42.12.010,supra, the Wisconsin court held that a school board member did not thereby vacate his office. The court stated that the office of a member of the school board becomes vacant if the member ceases to be an inhabitant of the school district but not on his removal from one ward to another ward in the city (and school district). The court held that although the board member was elected from a particular ward, he was not an officer of that ward. Rather, he was an officer of the entire school district, in which he continued to reside.
Likewise, inHugunin v. Madison School Township, 108 Ind. App. 573, 27 N.E.2d 926 (1940), this same line of reasoning and result may be found. Under an Indiana statute providing that one trustee of a consolidated school district should be selected from the portion of a township located outside limits of a town, the Indiana court held that it was not required that the trustee retain continuous residence in the area from which he was elected. In so holding, the court expressed [[Orig. Op. Page 7]] itself as follows:
"While the statute provides that in the selection of trustees to control and manage consolidated schools one such trustee shall be selected from the township outside the corporate limits of the town, it will be noted that such statute does not require continuous residence therein following such appointment. It is our opinion, therefore, that the removal of such trustee from the township into the incorporated town does not of itself have the effect of creating a vacancy in such office. The duties of the trustee of a consolidated school are co-extensive with the territorial limits of the township in which such consolidated school is located. He is not an officer of the township exclusive of the territorial limits of the town." (27 N.E.2d 926, 928.)
The reasoning of these two cases is, clearly, much the same as appears in our own previous opinion (AGO 59-60 No. 25) on the subject. Accordingly, relying both upon this opinion and upon these two analogous cases from other jurisdictions,5/ our direct answer to your specific question is that a member of the school board of a school district which has been divided into director districts under RCW 28.57.050, supra, does not disqualify himself from continuing to hold that office by changing his residence from one director district to another director district, so long as he remains a resident of the school district.
We trust that the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Assistant Attorney General
*** FOOTNOTES ***
1/See, also, RCW 28.57.380. The general authority to divide a first or second class school district into five director districts is vested in each county committee on school district organization see, RCW 28.57.050(6). Our opinion is limited, of course, to those districts which are operating pursuant to these statutes. Nothing contained herein should be regarded as passing, either way, on the question of director district residence as a continuing qualification for office in the case of school directors appointed or elected under the special provisions of chapter 131, Laws of 1969, relating to school directors in first class districts enrolling 70,000 pupils or more, in first class counties.
2/Now codified, without change, as RCW 42.12.010.
3/In AGO 59-60 No. 25, we stated, in addition, that our conclusion was supported by State ex rel. O'Connell v. Nelson, 7 Wash. 114, 34 Pac. 562 (1893), wherein the court held that a duly elected and qualified overseer, who was a resident and elector of the road district in which he was elected, at the time of his election, did not become disqualified to hold office by reason of the fact that the county commissioners thereafter changed the boundaries of the road district so as to place his residence in another road district. This case, of course, has no application to the type of situation which we are considering in this opinion. It was cited in the 1959 opinion only by way of saying that the result in a realignment situation would be sustainable even if we were to have assumed (contrary to the conclusion actually reached, as above stated) that a school director was a director district officer rather than an officer of the entire school district.
4/RCW 42.12.010, supra.
5/No cases to the contrary have been found.