In order for a board member’s resignation to take effect, must it be accepted by vote of the board? When does it take effect? Are retroactive and prospective resignations permitted?
In the 1959 case of Green v. Jones, the Supreme Court of Appeals of West Virginia ruled that in order to be effective, a school board member’s resignation must be accepted by the board of education.
To do so, the board need only adopt a motion to the effect that “the Board of Education accepts the resignation of ______ from his/her position as a member of the Board of Education.”
A school board member’s resignation typically states that the resignation is to immediately take effect. If so, at the very moment the board adopts the motion to accept the resignation, the resignation occurs and a vacancy exists.
What if a board member presents a resignation that states, as an effective date, a date that has already passed?
There appears to be no legal authority in our state allowing a school board to accept a member’s resignation retroactively. For various reasons it seems doubtful that such action would be recognized in the courts. Accordingly, boards are well advised to disapprove retroactive resignations.
Which begs the question: may a board member tender, and may a school board accept, a prospective resignation, meaning one that will not take effect until a future date?
Although there appears to be no West Virginia legal authority one way or the other on that question, it appears, on balance, that a prospective resignation, accepted by the school board in accordance with its terms, will operate to terminate the member’s term of office when the future date arrives.
So as not to create misunderstandings, several points are in order.
First, if no effective date is specified in the resignation presented by the outgoing board member, then the resignation would appear to take effect (and a vacancy would appear to exist) at the moment the board votes to accept the resignation.
Second, if the outgoing board member, in the resignation that he or she presents to the board, specifies a date on which the resignation is to take effect, the school board does not have the legal authority to change that date. If the resignation is accepted, it will take effect on the date specified by the member unless superseded by some other event that ends the members’ term, such as an untimely death or removal from office by a court.
Third, it appears that until a board member’s resignation is officially accepted by vote of the school board , the board member has the right to withdraw the resignation. In such a case the board could no longer vote to accept or reject the resignation, since the member’s resignation would no longer exist. (The same rule applies to resignations by public school employees.)
Fourth, the resigning board member must not participate in the board’s action on the resignation. This would include any discussion that precedes the vote. Additionally, in the case of a prospective resignation accepted by the school board, the resigning member cannot vote on the appointment of his or her replacement.
Fifth, in the case of a board accepting a prospective resignation, the board is well advised to postpone voting on a successor until after the resignation actually takes effect and the member who resigned is no longer a board member. The school statute concerning the appointment of a replacement board member, W. Va. Code § 18A-5-2, contains language that could conceivably be construed to prohibit a school board from appointing a successor until a vacancy actually exists. This is not to say that the board could not, prior to that date, discuss and consider the choice of a successor, but only that the actual vote to appoint is best taken thereafter.
Finally, there are other ways that vacancies can occur on school boards. Not every vacancy is created by a member’s voluntary resignation tendered and accepted. One of the most common occurs when a board member files a certificate of candidacy for any public office (other than to succeed him/herself). By operation of law, a board member’s term of office automatically ends upon the filing of that certificate. No action by the school board is required to create the board vacancy in that instance.