Judges: W.A. DREW EDMONDSON, Attorney General of Oklahoma
Filed Date: 5/4/2000
Status: Precedential
Modified Date: 7/6/2016
Dear Representative McCarter,
¶ 0 This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:
1. Is a resident of an elementary school district eligible to bea candidate for and serve as a member of the board of educationof the independent school district where the resident's childrenwill attend high school?
2. If the answer to the first question is no, is there anyprocedure to remove an elementary school district resident fromthe board of education of an independent school district?
¶ 1 School districts in Oklahoma, other than area vocational-technical districts, are classified as either elementary, which offer classes through eighth grade, or independent, which offer all grades through high school. See70 Ohio St. 5-101 (1999). The fact that elementary school districts do not offer a high school education to the children of the districts' residents prompts the question of whether an elementary school district resident, whose children will transfer to a neighboring independent district for their high school education, may serve on the board of education of the independent district. As explained more fully below, the answer to this question is no because eligibility to serve on a school board depends on the candidate's residency in the district governed by the board, rather than on whether the candidate's children attend school in the district. See 26 Ohio St. 13A-106(A) (1999).
¶ 3 All school districts in Oklahoma are designated as either independent, elementary or area vocational-technical and each district is under the supervision and administration of a board of education. See 70 Ohio St. 5-101 (1999). While the territory of an area vocational-technical district may overlap or be coterminous with that of an independent school district, the territories of independent and elementary districts are mutually exclusive. See 70 Ohio St. 14-110 (1991). Independent school districts offer all grades, including high school subjects accredited by the State Board of Education. See 70 Ohio St. 5-102 (1991). Elementary school districts are defined as follows:
"Elementary school districts shall offer grades kindergarten through eight and are those which have not met the minimum standards for, and have not been designated as, independent school districts by the State Board of Education. On and after July 1, 1991, every place in the Oklahoma Statutes which refers to "dependent school district" shall mean "elementary school district".
See 70 Ohio St. 5-103 (1991).
¶ 4 Students residing in an elementary school district may apply to transfer to an independent school district to attend high school. See 70 Ohio St. 8-101.2(A) (1999). "If the grade a student is entitled to pursue is not offered in the district where the student resides, the transfer shall be automatically approved." Id.
"To be eligible to be a candidate for member of the board of education of a school district or vocational-technical school district, a person must have resided in the district for at least six (6) months preceding the first day of the fling period, and have been a registered voter registered with the county election board at an address located within the geographical boundaries of the district for six (6) months preceding the first day of the filing period. . . . In school districts that are divided into election districts, a candidate must have resided in the district for at least six (6) months preceding the first day of the filing period and have been a registered voter registered with the county election board at an address located within the geographical boundaries of the election district for six (6) months preceding the first day of the filing period."
See 26 Ohio St. 13A-106(A) (1999) (emphasis added).
¶ 6 The Legislature has the power to prescribe the qualifications of school board officers if the qualifications do not violate the State or federal Constitution. See Stafford v.State Election Bd.,
¶ 7 Where the language of a statute is plain and unambiguous and its meaning clear, the statue will be accorded the meaning as expressed by the language employed. See Cavett v. Geary Bd. ofEduc.,
¶ 8 The fact that elementary school district residents do not have a voice on the board of the independent district where their children transfer to attend high school was noted in Attorney General Opinion 95-083. The Opinion addressed whether it is unconstitutional to tax property owners of an independent school district pursuant to Article X, Section 9(c)1 and Article
"If during the term of office to which a person was elected, that member ceases to be a resident of the board district for which the person was elected, the office shall become vacant and such vacancy shall be filled as provided in Section 13A-110 of Title 26 of the Oklahoma Statutes."
See 70 Ohio St. 5-107A(B)(2) (1999).
¶ 10 A vacancy on a school board is filled by the board's appointment of a new member who meets the same eligibility qualifications as candidates for the office. See 26 O.S.13A-110(A) (1999). Section 26 Ohio St. 5-107A(B)(2) is similar to the general statute on vacancies in public offices, which provides that such vacancies occur automatically upon the occurrence of specified events, including "ceasing to be a resident of the state, county, township, city or town, or of any district thereof, in which the duties of his office are to be exercised or for which he may have been elected or appointed."51 Ohio St. 8 (1991). The determination of the vacancy is to be made by the authority authorized to fill such vacancy. See id. The vacancy is determined by the board as constituted after occurrence of the vacancy. See Bowen v. Brock,
¶ 11 Both 70 Ohio St. 5-107A(B)(2) (1999) and 51 Ohio St. 8 (1991) provide for automatic vacancies when an incumbent ceases to be a resident during his or her term of office. This is in keeping with the general rule that an office is vacant in the eyes of the law whenever it is not occupied by a legally qualified incumbent.See Kash v. Day,
¶ 12 The subject matter and purpose of a statute are material to ascertaining the meaning of the words used and that language should be construed to be harmonious with the purpose of the act, rather than in a way that will defeat it. See McNeill v. City ofTulsa,
¶ 13 In addition to the provisions allowing the board to declare a vacancy and fill the position by appointment, there is also a judicial remedy available to remove an ineligible individual from office. When an individual is holding office without right or title to the office, the appropriate method of removal is an action in the nature of quo warranto. See State v.Rapp,
¶ 14 The State's right of action to remove ineligible officers is founded on its interest in good government and the general welfare of all of its citizens. See Callendar v. District Ct.for the Twentieth Judicial Dist.,
¶ 15 It is, therefore, the official Opinion of the AttorneyGeneral that:
1. A resident of an elementary school district is not eligibleto be a candidate for or a member of the board of education ofthe independent school district where the resident's childrenwill attend high school. A candidate for a board of educationmust be a resident of the district governed by the board. See26 Ohio St. 13A-106. Moreover, a school board member must remain aresident of the district during his or her term of office toretain eligibility to serve on the board. See 70 O.S.5-107A(B)(2) (1999).
2. If a school board member is not a resident of the schooldistrict governed by the board, the board may declare a vacancyin the position and appoint a new member to the board. See 70O.S. 5-107A(B)(2) (1999) and 26 Ohio St. 13A-110(A) (1999). Ifnecessary, the Attorney General or a district attorney may filean action in the nature of quo warranto in district court toremove an elementary school district resident elected to serve onthe board of education of an independent school district. See12 Ohio St. 1531-12 Ohio St. 1533 (1991).
W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA KATHRYN BASS ASSISTANT ATTORNEY GENERAL
Sharp v. Tulsa County Election Board , 890 P.2d 836 ( 1995 )
Stafford v. State Election Board , 203 Okla. 132 ( 1950 )
Callender v. DISTRICT COURT, ETC. , 625 P.2d 627 ( 1981 )
Nesbitt v. Apple , 891 P.2d 1235 ( 1995 )
Jackson v. Freeman , 905 P.2d 217 ( 1995 )
McNeill v. City of Tulsa , 953 P.2d 329 ( 1998 )
Cavett v. Geary Board of Education , 587 P.2d 991 ( 1978 )
In Re Wickstrum , 454 P.2d 660 ( 1969 )