Frequently asked questions regarding filling of county board vacancies
By Richard Boothby
Q. Does the county board have the right to refuse to accept a county board member’s resignation?
A. The board could refuse to accept a resignation. The individual resigning the position, however, could continue to follow through with his intent despite any such board action. Moreover and in a practical sense, what would be accomplished if the county board were to vote not to accept the resignation?
Q. Must a county board member’s resignation be in writing?
A. There is no legal requirement that the resignation of a board member be in writing. Though, without one, it might be problematic if, for example, the resigning board member did not show up at the meeting where his/her resignation was to be accepted. After all, what proof would there be that he/she has indicated that he/she was resigning? Perhaps the board could refuse to entertain a motion to accept the resignation until it is submitted either in writing or at least orally on the record during a properly convened board meeting.
Q. Does the resigning member have the ability to participate in the process utilized by the county board to name his or her successor?
A. By law, the board member whose resignation will result in a vacancy to be filled by the board under Code §18-5-2 has no vote in who will succeed him. The vote is taken during the 45 days after the resignation takes effect. If the board does not appoint a successor within that period, it loses the power to do so, and the state superintendent appoints the successor.
Q. Does state law specify the manner the county board is to utilize in selecting the individual to be appointed to fill the vacancy?
A. Generally speaking, other than to require that the appointed new board member meet the eligibility criteria of West Virginia Code 18-5-1a (citizenship and residency in the county, not residing in the same magisterial district as two incumbent board members, possession of a high school or GED diploma, and not employed by the appointing board), the school laws do not specify the procedure to be followed in selecting the individual to be appointed to fill a vacancy on the board.
Q. What does the statute say?
A. The governing statute, W. Va. Code § 18‑5‑2, simply states, without elaboration, that:
"[t]he board shall, by appointment, fill within forty-five days any vacancy that occurs in its membership. In the event that the board does not fill the vacancy within forty-five days, the state superintendent of schools shall appoint a person to fill the vacancy."
Q. Must notice of the vacancy be posted?
A. Because county board members are not employees of the board, their appointment is not governed by the posting and selection criteria of the statutes, which regulate the hiring and appointment of professional and service personnel, such as W. Va. Code §§ 18A-4-7a and 18A-4-8b.
Q. What have other county boards done in order to fill a board vacancy in its membership?
A. The association is aware of county boards which have instituted and followed posting, application, interview, and selection procedures before appointing new board members. We are aware of others, which have made appointments without posting notice of the vacancies, taking any applications, conducting any interviews, or following any predetermined selection procedures. We are unaware of any legal challenges to either approach.
Thus, as far as we can tell, county boards, in filling a board vacancy by appointment, need not first take applications from interested persons or follow any other prescribed selection procedure to arrive at the name of the appointee. It appears that the board can dispense with such procedures or create procedures of its own, as it chooses, as long as, in doing so, the board does not violate some other provision of law, such as the Open Meetings Act.
Needless to say, the Open Meetings Act and the other rules that govern all board of education meetings and decisions would apply, regardless of the approach taken by a county board.
For example, a board could not discuss filling a vacancy on the board, and could not actually appoint someone to fill a board vacancy, except at a duly called meeting. The published notice of the meeting must fairly notify the public and the news media in advance that this might happen at the meeting.
Likewise, all the rules governing executive sessions must be observed before a board goes into executive session to discuss any matter arising from the "appointment of a public officer or prospective public officer," which the Open Meetings Act allows. Under the Open Meetings Act, no vote can be taken, and no decision can be made, in executive session.
If a board, by policy or practice, typically follows Robert's Rules in conducting meetings, then Robert's Rules will apply to any consideration of or action upon the appointment of someone to fill a board vacancy.
Q. Must the county board name the individual who received the “next highest” number of votes in the last election but who was not elected to the position?
No. The county board could take this stance, but it is not required by statute. Moreover, there is the question of magisterial district limitation(s).
Rick Boothby is a member of the Education Law Group at Bowles Rice, LLP. Rick is a former public school teacher and an honors graduate of the Moritz College of Law at The Ohio State University.