Legalities

February 2, 2018 - Volume 38 Issue 4

Legalities

Roger Hanshaw

By Rebecca M. Tinder, Esq.

Question:  May a board member remain on the county board of education after moving out of the magisterial district from which he or she was elected? What if the board member moves to an adjoining county?

Answer:  W. Va. Code § 18-5-1a(a)(1) provides that “a member of a county board … shall be a citizen and resident in the county in which he or she serves on the county board.” Thus, when a board member moves his or her residence out of the county in which the member was elected and is serving on the board of education, he or she is no longer legally qualified to serve on that board.

In contrast, the same board of education member moving from one magisterial district to another magisterial district in the same county might not result in ineligibility. Article 12, Section 6 of the West Virginia Constitution, and W. Va. Code § 18-5-1, prohibit a county board of education from having more than two members at the same time from the same magisterial district. If the board of education member established the new residence in a magisterial district that only had one other county board of education member, or fewer, this rule would not be violated.

The Attorney General of West Virginia many years ago issued an opinion stating that a board member who lived in one magisterial district when elected, but who then moved into another magisterial district in the same county, does not automatically vacate his or her office unless two legally qualified members of the same school board already reside in the magisterial district to which he or she moves.  The State Superintendent of Schools, in a written interpretation of school law, agreed with the Attorney General. The Attorney General’s opinion still seems valid.

Sometimes questions arise as to whether a board member has actually changed his or her place of residence. For example, a board member whose home is destroyed, who temporarily resides in another magisterial district while the house is rebuilt, and who intends to move back into the house when it is again habitable, may well be considered in the eyes of the law to still reside in the magisterial district from which he or she is temporarily displaced.  The facts of other situations might support the conclusion that an individual’s temporary relocation does not amount to a change in residence.

Editor’s Note: Tinder is a partner in the Charleston office of Bowles Rice LLP. Tinder advises, represents and conducts trainings for school districts, Regional Education Service Agencies (RESAs), and multi-county career and technical education centers.