AGLO 1974 No. 56 - May 13 1974
DISTRICTS ‑- SCHOOLS ‑- ELECTIONS ‑- SCHOOL BOARD MEMBER ‑- ELIGIBILITY ‑- TRAVEL EXPENSES
(1) In order to be eligible to the office of school board member a person must be a registered voter of the school district and remain an inhabitant of that area, but a mere temporary physical absence from a given area will not cause an inhabitant to cease to be one.
(2) RCW 28A.58.310 contains no restriction upon payment of expenses to a school director by reason of the fact that the point of origin of whatever travel is necessary by him to attend a particular school board meeting is situated outside of the district.
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May 13, 1974
Honorable Peter von Reichbauer
State Senator, 13th District
P.O. Box 877
Auburn, Washington 98002 Cite as: AGLO 1974 No. 56
By recent letter you have asked:
"1. Is it legal for someone not actually living in the school district to be holding office as a school board member?
"2. If so, can he receive travel pay for school board meetings for the distance from his school residence to the meeting or only from his voting residence to the school board meeting?"
We answer as set forth below.
Initial eligibility for the office of school director is governed by RCW 28A.57.318 which provides that:
". . . No person shall be eligible to the office of school director who is not a citizen of the United States and the state of Washington and a registered voter of either the school district or director district, as the case may be." (Emphasis supplied.)
In order to be a registered voter of a school district, an individual must have resided therein for at least thirty days ‑ as recently indicated in AGLO 1974 No. 55 [[to Anton J. Miller, Prosecuting Attorney, Pacific County on May 10, 1974, an Informal Opinion AIR-74555]], copy enclosed ‑ and, in addition, have registered to vote in that district in accordance with RCW 29.07.010, et seq. As further pointed out in the foregoing opinion, however,
[[Orig. Op. Page 2]]
". . . once physical presence is attained for a sufficient length of time, legal residence for the purpose of voting may be continued within the county [or district] even though physical residence is elsewhere until legal residence is established in the new location, Wilson v. Hoisington, (Mont.) 98 P.2d 369."
Also to be noted in regard to your first question is RCW 42.12.010 which states that:
"Every office shall become vacant on the happening of either of the following events before the expiration of the term of such officer. . . . fourth, 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; . . ."
Again, however, a mere temporary physical absence from a given area does not, by itself, cause a person who has established himself as an inhabitant of that area to cease to be one. Accord, AGO 1927-28 p. 580 [[to C. W. Clausen, Supervisor of Municipal Corporations on March 8, 1928]], et seq., copy also enclosed, in which we said of the above‑quoted portion of RCW 42.12.010 under similar circumstances:
"The fourth contingency cannot be invoked in the question at bar for the reason that the mayor has not moved his legal residence from the town but is absent only temporarily for the purpose of earning a livelihood. Ops. Atty. Gen. 1917-18, page 149; Throop, Public Officers, page 413; Mechem, Public Officers, page 280.
"'Where an incumbent of a public office who, to be qualified for the office, must reside in the district, moves out of the district with the intention of remaining permanently out of the district, the office which he holds is regarded as vacant. But if the absence from the district is only temporary such absence is not to be regarded as a removal.'
"29 Cyc. 1380;
"State ex rel. McGuye v. Huff, 87 N.E. (Ind.) 141; State ex rel. Hopkins v. Board, 193 Pac. (Kan.) 1074."
[[Orig. Op. Page 3]]
Moreover, insofar as any particular factual situation is concerned, the appropriate, and in fact the only legal procedure available to determine the right of a particular school director to continue in office is that of a quo warranto action brought by the prosecuting attorney of the county in which the school district involved is located ‑ as provided for in chapter 7.56 RCW. See, Green Mountain School District v. Durkee, 56 Wn.2d 154, 351 P.2d 525 (1960), and cases cited therein.1/
With respect to the matter of expenses for attending a school director's meeting, we would refer you to AGLO 1974 No. 42 [[to Washington State School Directors Association on April 10, 1974 an Informal Opinion AIR-74542]], a copy of which is also enclosed for your immediate reference. As you will note from reading this opinion, the applicable statute (RCW 28A.58.310) contains no restriction upon the payment of expenses to a school director by reason of the fact that the point of origin of whatever travel is necessary by him to attend a particular school board meeting is situated outside of the district. This statute reads as follows:
"The actual expenses of school directors in going to, returning from and attending upon directors' meetings or other meetings called or held pursuant to statute shall be paid. Likewise, the expenses of school superintendents and other school representatives chosen by the directors to attend any conferences or meetings or to attend to any urgent business at the behest of the state superintendent of public instruction or the board of directors shall be paid. The school directors, school superintendents or other school representatives may be advanced sufficient sums to cover their anticipated expenses in accordance with rules and regulations promulgated by the state auditor and which shall substantially conform to the procedures provided in RCW 43.03.150 through 43.03.210."
Of course, if the absence of any such restriction is thought by the legislature to be a problem, the adoption of an appropriate amendment would certainly be permissible ‑ and we would be happy to aid you in this regard if desired.
[[Orig. Op. Page 4]]
It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/In connection with the particular factual situation referred to in your letter, note that under Article VI, § 4 of our state Constitution a person is not to be deemed to have gained or lost a residence for voting eligibility solely by reason of being a student attending school. Accord, AGO 1971 No. 10 [[to Arthur C. Brown, Chairman, Committee on Elections and Apportionment on March 2, 1971]]and letter opinion dated April 19 [[an Informal Opinion AIR-72524]], 1972, to the secretary of state, copies enclosed.