Request By:
Mr. Mike Waits
News Editor
The Cadiz Record
P.O. Box 311
Cadiz, Kentucky 42211
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Deputy Attorney General
You have requested the Office of the Attorney General to prepare a formal opinion concerning the filling of a vacancy on a local board of education by the remaining members of the board. You stated a member of the Trigg County Board of Education resigned March 2, 1981, after filing as a candidate for sheriff. This board member lost in the May 26 Primary Election. However, he was reappointed to the board by the remaining members of the board on June 2, 1981. In view of the law as set out in KRS 160.190, you questioned the legal effect of the reappointment to the board in that it did not occur within ninety days following the vacancy created by the resignation. You ask whether the responsibility of making the appointment automatically falls to the State Board of Education if the local school board does not fulfill their responsibility of naming a replacement within ninety days, even though no resident notifies the State Board of the vacancy.
The provision of Kentucky school law applicable to this situation is KRS 160.190 as you suggested. This statute reads in full as follows:
"(1) Any vacancy in any board of education shall be filled by the other members of the board within ninety (90) days after the vacancy occurs. If the vacancy is not filled by the other members of the board within ninety (90) days, it shall be filled by the state board for elementary and secondary education within thirty (30) days after information has been filed by any citizen of the district that the vacancy has existed for more than ninety (90) days. The member so chosen shall hold office until his successor is elected and has qualified.
(2) Any vacancy having an unexpired term of one year or more at the next regular November election after the vacancy occurs shall be filled for the unexpired term by an election to be held at the next regular November election after the vacancy occurs. The elected member shall succeed the member chosen by the board of education or the state board for elementary and secondary education to fill the vacancy. "
Obviously of considerable importance is the determination of when the vacancy is created so as to commence the running of the ninety-day period. As a usual matter, a resignation, as we have involved here, becomes effective only after acceptance by the board. See OAG 76-612 and OAG 75-634, copies attached. Thus, until the resignation is accepted, there is no vacancy. You do not state whether the resignation of the board member in question was accepted on March 2, 1981, by the remaining board members. Irrespective of this fact, we are of the opinion that under the circumstances explained, the date of the resignation and acceptance is not the triggering time of the vacancy here in consideration. We believe a legal vacancy was created when the school board member became a candidate for county office, in that a county office and the office of school board member are incompatible and become so at the time a school board member becomes a candidate for the county office. KRS 160.180(2). See 1960 OAG 341, copy attached. And, it should be noted that although a legal vacancy was created at the time the board member became a candidate for the county office, the remaining board members had no authority to declare the vacancy until the resignation was tendered and accepted. See
Salyers v. Lyons, 304 Ky. 320, 200 S.W.2d 749 (1947).
Returning back to KRS 160.190(1), it is clear the remaining members of a board of education are to fill a vacancy "within ninety (90) days after the vacancy occurs." Although it is suspected the board member in question filed to become a candidate before March 2, 1981, and thereby created a legal vacancy, we can still use the March 2, 1981, date for discussion purposes. The ninetieth day after March 2 is May 31. This computation is arrived at pursuant to KRS 446.030, which calls for the day of an act or event, here the resignation on March 2, 1981, to not be included in the computation and the last day to be included. Thus, in that March has thirty-one days, we count twenty-nine days following March 2, the thirty days of April and the 31st of May becomes the ninetieth day.
You have told us the resigned board member was not reappointed until June 2, 1981. We are of the opinion this appointment was invalid. Until the State Board of Education fills this vacancy, the position has no legal office holder. In support of this conclusion, we rely upon the decision of the
Court of Appeals in Kash v. Day, Ky., 239 S.W.2d 959 (1951). The Court stated that if a local board of education did not fill a vacancy on the school board within ninety days after it occurred, the local board had no power to fill the vacancy. The Court decided the "power to fill the vacancy passes to the State Board of Education." 239 S.W.2d at 961.
The above still does not fully answer your question in that you ask about the State Board of Education being notified of a school board member position vacancy. As concluded above, the power to fill a vacancy leaves the local board and passes to the State Board of Education after ninety days has elapsed from the date the legal vacancy occurred. However, KRS 160.190 directs the State Board to fill the vacancy within thirty days "after information has been filed by any citizen of the district that the vacancy has existed for more than ninety (90) days." Thus, until the State Board of Education is in receipt of information that ninety days have passed and a school board member position is still vacant, the State Board's thirty-day period of time to take action to fill the vacancy does not begin to run.
We trust the above information will be of assistance to you in regard to the matter under discussion.