Opinion No. ( 1989 )

The Honorable Jim Hudson Prosecuting Attorney Miller County Courthouse Texarkana, AR 75502

Dear Mr. Hudson:

This is in response to Deputy Prosecuting Attorney Wm. Randal Wright's request for an opinion regarding the Hope School Board special election.

According to Mr. Wright, a special election will be held in accordance with a federal court order for the purpose of electing a new school board. All eight positions on the board will be filled. A question has arisen concerning the composition of the board following the special election. The concern apparently arises from the possibility of run-off positions to be filled on the date specified for a run-off election fourteen days after the special election. The following question is asked with regard to the make-up of the Board before and after the run-off, if any:

Is it the old School Board or the newly elected members of the new School Board with run-off positions not yet elected?

It must be initially noted in responding to this question that the persons elected to the new board will "enter at once upon their duties as directors" upon being commissioned by the county clerk. A.C.A. 6-13-617. The commissioning must occur "immediately" upon the clerk's receipt of the directors' oath, and the oath must be subscribed to within ten (10) days after the directors receive notice of their election. ID. The results of the election must be declared by order of the county court within ten (10) days after the election. A.C.A. 6-14-115.

The board positions for which no run-off is necessary could therefore be filled by new members before the run-off decides who will serve in the remaining positions. With regard to the run-off positions, however, it must be concluded that the old school board members will serve until those elected in the run-off are qualified. This conclusion is compelled by a review of the Code sections governing district boards of directors, and by several constitutional provisions. With regard to directors appointed to fill additional authorized positions, A.C.A. 6-13-604(f) states: "All directors so appointed shall serve until their successors are elected and qualified." Section 6-14-120 requires this service, "until their successors are elected and qualified," of directors elected or appointed in accordance with Act 30 of 1935. (A.C.A.6-13-601, 6-13-602, 6-13-611, 6-13-616, 6-13-607, 6-14-110,6-14-114, 6-14-117. 6-14-119, 6-14-120.)

While we have not been provided with sufficient facts to determine the applicability of 6-13-604 or Act 30 of 1935, reference must also be made to Article 19, 5 of the Constitution of Arkansas which states: "All officers shall continue in office after the expiration of their official terms until their successors are elected and qualified." This provision may reasonably be construed to encompass school board directors in light of Article14, 4 of the Arkansas Constitution which specifically authorizes the General Assembly's creation of such positions as follows: "The supervision of public schools and the execution of the laws regulating the same shall be vested in and confided to such officers as may be provided for by the General Assembly."

Thus, in conclusion, it is my opinion that following the special election but before any run-off, the school board may be comprised of newly elected members and old members who will serve until those elected at the run-off are qualified. The entire new board will not be in effect until all of the newly elected members are commissioned and enter upon their duties as directors.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.