STATE BOARD OF EDUCATION ‑- ELECTION OF MEMBERS ‑- VOTE REQUIRED

STATE BOARD OF EDUCATION ‑- ELECTION OF MEMBERS ‑- VOTE REQUIRED

(1) When no candidate for membership on the State Board of Education receives a greater number of votes than the total votes cast for all of his competitors, no one has a majority of the votes and no one is elected to the office. (2) The failure to elect a member to the State Board of Education does not create a vacancy in the office.   The incumbent continues to hold the office by virtue of having been elected to serve until his successor is elected and qualifies.

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                                                               December 17, 1957

Honorable Lloyd J. Andrews
Superintendent of Public Instruction
Old Capitol Building
Olympia, Washington                                                                                                              Cite as:  AGO 57-58 No. 142

Dear Sir:

            This is in answer to your request for an opinion relating to the election of a member to the state board of education from the fourth congressional district.  We paraphrase your questions as follows:

            (1) Is a member of the state board of education elected when no candidate receives more than half of all votes cast for all candidates for the office at the second election?

            (2) If question (1) is answered in the negative, does the failure to elect a member to the board create a vacancy in the office which the state board of education may fill by appointment?

            We answer both of your questions in the negative.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            A discussion of certain facts and the method of electing members to the state board of education is necessary to a proper understanding of the issues involved.

            The state board of education is composed of two members elected from each congressional district by the directors of school districts.  RCW 43.63.010.  The method of electing members to the state board is prescribed by RCW 43.63.030.  It reads in pertinent part as follows:

            "Each member of the state board of education shall be elected by a majority of all the votes cast at the election for all candidates for the position. . . . If no candidate receives a majority of all such votes cast, then, not later than the first day of November, the superintendent of public instruction shall call a second election to be conducted in the same manner and at which the candidates shall be the two candidates receiving the highest number of such votes cast. . . . The candidate receiving a majority of votes at any second election shall be declared elected. . . ."

            The first election provided for by RCW 43.63.030 resulted in one candidate receiving 109 votes and two other candidates both receiving 100 votes.  No candidate having received "a majority of all the votes cast at the election", a second election was necessary.  Since two candidates tied for second place and the statute provided no method for determining which of the two candidates receiving the second highest number of votes should be listed on the ballot, this office advised the superintendent of public instruction that both candidates must be listed on the ballot.

            At the second election, one candidate received 128 votes, another received 127 votes, and the third received 101 votes.

            Question (1)

            Your first question concerns whether or not a member was elected to the state board at the second election.  This question turns on whether or not any candidate received "a majority of votes" at the second election as is required by RCW 43.63.030, quoted above.

            The word "majority" is defined in Webster's New Twentieth Century Dictionary (2nd ed.), page 1087, as:

            "1. The greater part or larger number; more than half; as, a majority of votes in Congress: opposed to minority."

             [[Orig. Op. Page 3]]

            Black's Law Dictionary (4th ed.) at page 1107 contains the following explanation of the term "majority":

            "When there are only two candidates, he who receives the greater number of the votes cast is said to have a majority; when there are more than two competitors for the same office, the person who receives the greatest number of votes has aplurality, but he has not a majority unless he receives a greater number of votes than those cast for all his competitors combined."

            See also:  Application of McGovern, 44 N.Y.S. (2d) 132, 137, 180 Misc. 508; andMills v. Hallgren, 124 N.W. 1077, 1079, 146 Iowa 215.

            The candidate having the highest number of votes cast at the second election did not have a greater number of votes than the total number of votes cast for all of his competitors.  Consequently, in our opinion, he was not elected.

            Question (2)

            Your second question concerns the possible existence of a vacancy on the state board of education due to the failure of the school directors to elect a new member at the second election.

            RCW 43.63.100 reads in pertinent part as follows:

            "Whenever there shall be a vacancy upon the state board of education, from any cause whatever, it shall be the duty of the remaining members of the board to fill such vacancy by appointment, and the person so appointed shall continue in office until his successor has been specially elected, as hereinafter provided, and has qualified. . . ."

            The above statute does not attempt to define when a vacancy shall be deemed to exist.  It merely provides for an appointment by the state board of education when a vacancy does exist.

            RCW 42.12.010 defines the events which create a vacancy in an office.  However, it does not specify that the failure to elect a successor creates a vacancy in the office.

            The term of the present incumbent of the office is specified by RCW 43.63.090, which reads in pertinent part as follows:

             [[Orig. Op. Page 4]]

            "The term of office of each member of the state board of education shall begin on the second Monday in January next following the election at which he was elected, and he shall hold office for the term for which he was elected anduntil his successor is elected and qualified. . . ."  (Emphasis supplied.)

            Under the statute, the present incumbent of the office holds office "until his successor is elected and qualified."

            InState ex rel. Meredith v. Tallman, 24 Wash. 426, 64 Pac. 759, our supreme court held that an incumbent whose term of office was for a fixed period of years and "until his successor is elected and qualified" was entitled to continue in office after the expiration of the fixed period of years when his successor could not qualify for several months.  The court stated:

            "When, therefore, the legislature used the words, 'whose term of office shall begin on the second Monday in January next succeeding his election and continue for two years and until his successor is elected and qualified,' it was not meant thereby that his term of office should be two years and no more.  The phrase, 'and until his successor is elected and qualified' means something.  It was not used idly.  If so, the term was not fixed at two years and no more, but was two years and more; the further time depending upon the contingency not only of an election, but also of the qualification of the person elected, which might be one day, one month, or any number of months.  A person elected to an office, with the term so fixed at two years and such further time, would be entitled to hold the full two years and such further time, viz., until his successor had been elected and also had qualified. . . ." (page 430)

            The court then held that under the circumstances no vacancy existed in the office.

            InState ex rel. Vanderveer v. Gormley, 53 Wash. 543, 102 Pac. 435, our supreme court held that a vacancy in the office of county treasurer did not exist by reason of the failure of the person elected to qualify.  The court noted that the incumbent was elected "for the term of two years, and until his successor  [[Orig. Op. Page 5]] is elected and qualified" and held that the incumbent continued in office due to the failure of his successor to qualify.

            See alsoState ex rel. Rogers v. Johnson, 135 Wash. 109, 237 Pac. 12, and 164 A.L.R. 1248.

            We conclude, therefore, that a vacancy will not exist due to the failure of the directors to elect a member to the state board of education and that the incumbent continues in office until his successor is elected and qualifies for the office.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ELVIN J. VANDEBERG
Assistant Attorney General