March 17, 1981

Miss Alice Kundert 
Secretary of State 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 81-11

Filling of Vacancies Created by Election to Increase the Size of a School Board

Dear Miss Kundert:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Citizens of a school district plan to petition for an election to increase the number of members on the school board pursuant to SDCL 13-8-3.  It is anticipated the petitions will be filed at the proper time to allow the special election to be held on the date of the regular school board election, i.e., the third Tuesday in June.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Can the positions created by the successful election to increase the size of the board be filled by appointment until the next annual election? 

2.  If the newly created vacancies can be filled by appointment, when are the appointments made? 

3.  Please outline the steps to be taken and the timetable for those steps if the election is held on the regular annual school election day and also if it is held as a special election on a date determined according to SDCL 13-8-3.

IN RE QUESTION NO. 1:

SDCL 13-8-4 provides: 

If at an election held pursuant to § 13-8-3 an increase in the number of board members is authorized, the school board is empowered to designate the number of vacancies and the number of years, not to exceed three years, in each vacancy so that all succeeding annual elections will have, in so far as practicable, the same number of vacancies to be filled. 

The procedure for decreasing the number of board members shall be the same as for increasing the number of board members, and the board is similarly empowered to designate the vacancies and terms not to exceed three years; provided, that each school board member shall be entitled to complete the term of office to which he was elected.

SDCL 13-8-14 provides: 

The newly elected members of the school board shall qualify and assume membership at the annual meeting of the next school board in July, and appointed members at the next meeting following such appointment, by taking and subscribing to an oath or affirmation to support the laws and Constitution of the United States and the state of South Dakota and to faithfully perform the duties of school board membership and by filing a bond if required by law and having it approved.

SDCL 13-8-25 provides: 

Any vacancy occurring on a school board shall be filled by appointment by the remaining school board members. 

The appointee shall qualify as if elected at or before the next school board meeting, and serve until the next succeeding election at which time a successor shall be elected to serve the unexpired term.

SDCL 13-7-18 provides: 

The election results shall be canvassed by the school board at the next meeting and certificates of election shall be issued by the business manager of the district to the successful candidates and election results shall be certified to the county auditor of the counties in which the school district is located.

In view of the foregoing statutes, the answer to your first question is yes.  It is my opinion that the vacancies created by a successful vote to expand the size of a school board per § 13‑8-4 are vacancies which can be filled by appointment pursuant to § 13-8-14 and 13-8-25.

IN RE QUESTION NO. 2:

In answer to your second question, it is my opinion that the aforementioned appointments may only be made at the annual school board meeting in July.

I say this because a vacancy can only be said to exist if the term, on which  the vacancy is dependent, has commenced.  Since all terms of school board members are annual in nature (beginning and ending with the annual meeting), it is my opinion that § 13-8-4--'so that all succeeding annual elections will have, in so far as practicable, the same number of vacancies to be filled'-- contemplates that all such appointments must occur at the annual school board meeting.  This, of course, means that defeated members of the 'old' school board could not appoint themselves to the expanded positions on the 'new' board prior to the expiration of their term.

IN RE QUESTION NO. 3:

If the special election to increase the size of the school board is held on a date other than from 32 days prior to the annual school election (SDCL 13-7-6) to the day of the annual meeting in July, it is my opinion that no appointment would be necessary as all expanded positions could be filled by election.

If, on the other hand, the special election is held during the period from 32 days prior to the annual election to the July annual meeting, the appointment of members to fill the newly created positions would occur at the annual meeting in July.

Respectfully submitted,

Mark V. Meierhenry
Attorney General