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Attorney General Releases Opinion On Filling Vacancies Before End Of Term
The Education Code establishes a system governing elections of trustees to school boards. Although the Education Code provides a general process for filling vacancies on school boards, it does not have a specific procedure for filling vacancies that occur after a new districting system has been adopted, but before the end of a term that was governed by the old system.
In Opinion Number 22-502, the Office of the Attorney General addressed two questions related to filling vacancies on school boards before the end of a term. The first question presented was: “Where a school district changes from at-large elections of board trustees to by-trustee area elections (in which the district is divided into trustee areas, and trustees must live within specific trustee areas), and a vacancy arises in a seat held by a member who was elected at-large, do the new by-trustee areas apply in filling the vacancy?” The Attorney General concluded that where a district has recently adopted by-trustee area elections, a vacancy should be filled according to the old boundaries until the next regular election for that term. In reaching this conclusion, the Attorney General examined Education Code sections 5021 and 5091, however, these provisions do not state whether old boundaries or new boundaries should apply. The Attorney General then examined its own prior opinions on similar issues and concluded that the boundary rules that applied at the inception of a term are meant to continue for the duration of that term, even if the tenure of the term is interrupted by vacancy and a new incumbent.
The second question presented was: “Where a school district has revised the boundaries of its trustee areas following the decennial census, do the revised boundaries apply if a vacancy occurs during the term of a governing board member elected prior to revision of the boundaries?” The Attorney General concluded that the boundaries in effect at the time of the previous election are used to determine eligibility to fill a vacancy for that seat. In the absence of specific guidance from the Education Code, the Attorney General examined the legislative intent behind Education 5019.5 and 5091 and reasoned that the provisions demonstrate that the regular pattern of four-year terms should not be disrupted due to a vacancy. Therefore, the Attorney General concluded that where a school district governing board revises the boundaries of its trustee areas following the decennial census, the boundaries in effect at the time of the previous election should be used to determine eligibility to fill a vacancy occurring before the next regular election for that office.
Attorney General’s Opinion No. 22-502 (October 27, 2022).