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District Policies

Viewing Policy: BP 9223 – Filling Vacancies



BP 9223

Board Bylaws

Filling Vacancies

Events Causing a Vacancy

A vacancy on the County Board of Education may occur for any of the following events:

 

  1. The death of an incumbent (Government Code 1770)

 

Pursuant to Education Code 1007, a vacancy on a school district board occurs when an incumbent board member is declared physically or mentally incapacitated in a quo warranto proceeding. Although County Board of Education is a constitutionally established office, the quo warranto provision likely applies to county board members even though the specific subdivision does not apply to offices created by the California Constitution.

 

  1. The adjudication pursuant to a quo warranto proceeding declaring that an incumbent is physically or mentally incapacitated due to disease, illness, or accident and that there is reasonable cause to believe that the incumbent will not be able to perform the duties of his/her office for the remainder of his/her term (Government Code 1770)

 

  1. A County Board member’s resignation (Government Code 1770)

 

  1. A County Board member’s removal from office, including by recall (Elections Code         11384; Government Code 1770)

 

  1. A County Board member’s ceasing to inhabit the trustee area which he/she represents on the County Board (Government Code 1770)

 

  1. A County Board member’s absence from the state for more than 60 days, except in the following situations:  (Government Code 1064, 1770)

 

  1. Upon County Board business with the approval of the County Board

 

  1. With the consent of the County Board for an additional period not to exceed a                              total absence of 90 days

 

In the case of illness or other urgent necessity, and upon a proper showing thereof, the      time limited for absence from the state may be extended by the County Board.

 

  1. For federal military deployment, not to exceed an absence of a total of six months,                        as a member of the armed forces of the United States or the California National                                    Guard

 

If the absence of the County Board member for military deployment exceeds six months, the County Board may approve an additional six-month absence upon a showing that there is a reasonable expectation that the member will return within the second six-month period, and the County Board may appoint an interim member to serve in his/her absence.

 

If two or more members of the County Board are absent by reason of military deployment, and those absences result in the inability to establish a quorum at a regular meeting, the County Board may immediately appoint one or more interim members as necessary to enable the County Board to conduct business and discharge its responsibilities.  The term of an interim member appointed in these circumstances shall not extend beyond the return of the absent County Board member or beyond the next regularly scheduled election for that office, whichever occurs first.

 

  1. A County Board member’s ceasing to discharge the duties of his/her office for the period of three consecutive months, except when prevented by illness or when absent from the state without the permission required by law  (Government Code 1770)

 

  1. A County Board member’s conviction of a felony or any offense involving a violation of his/her official duties or conviction of a designated crime resulting in a forfeiture of           office  (Government Code 1770, 3000-3003)

 

  1. A County Board member’s refusal or neglect to file his/her required oath within the time prescribed  (Government Code 1770)

 

  1. The decision of a competent tribunal declaring void a County Board member’s election or appointment  (Government Code 1770)

 

  1. A County Board member’s commitment to a hospital or sanitarium as a drug addict, dipsomaniac, inebriate, or stimulant addict by a court of competent jurisdiction, in which            case the office shall not be deemed vacant until the order of commitment has become   final  (Government Code 1770)

 

Pursuant to Education Code 5090, a vacancy is declared when there has been a “failure to elect,” meaning that the County Registrar of Voters has determined that an election will not be held because either no candidate or an insufficient number of candidates have filed to run for a County Board seat(s).  Education Code 5328 authorizes the County Board to make an appointment in such circumstances.

 

  1. A “failure to elect” in which no candidate or an insufficient number of candidates have filed to run for a County Board seat(s) (Education Code 5090, 5326, 5328)

 

 

Timelines for Filling a Vacancy

 

When a vacancy occurs, the County Board shall take the following action, as appropriate: (Education Code 1008)

 

  1. When a vacancy occurs within four months of the end of a County Board member’s term, the County Board shall take no action.  (Education Code 5093)

 

Pursuant to Education Code 5091, when a vacancy occurs or when a deferred resignation has been filed four or more months before the end of a County Board member’s term, the County Board shall take action, as specified below.  In the event that the County Board fails to make a provisional appointment or order an election within 60 days, the County Superintendent of Schools must call an election to fill the vacancy.

 

  1. When a vacancy occurs more than four months before the end of a County Board member’s term, the County Board shall either order an election or make a provisional appointment within 60 days of the date of the vacancy or the filing of the member’s             deferred resignation unless a special election as described in item #3 below is required.        (Education Code 5091, 5093)

 

  1. When a vacancy occurs between six months and 130 days before a regularly scheduled County Board election but the vacant position is not scheduled to be filled during that      election, a special election to fill the position shall be consolidated with the regular           election.  The person elected shall take office at the first regularly scheduled County    Board meeting following the certification of the election and shall serve until the end of         the term of the position which he/she was elected to fill.  (Education Code 5093)

 

Eligibility

 

In order to be appointed or elected to fill a vacancy on the County Board, a person must meet the eligibility requirements specified in Education Code 1000 and 1006 and described in Board Bylaw 9220.

 

Provisional Appointments

 

When a special election is not required, the County Board is authorized by law to make a provisional appointment to fill a vacancy on the County Board. Before making a provisional appointment, the County Board shall advertise in the local media to solicit candidate applications or nominations. The County Board shall ensure that applicants are eligible for County Board membership, interview the candidates at a public meeting, accept oral or written public input, and select the provisional appointee by a majority vote.

 

The person appointed shall be afforded all the powers and duties of a County Board member immediately upon appointment and shall hold office until the next regularly scheduled election for County Board members.  (Education Code 5091)

 

Within 10 days after the appointment is made, the County Board shall post notices of the actual vacancy, or the filing of a deferred resignation, and the provisional appointment.  The notice shall be published in the local newspaper pursuant to Government Code 6061 and posted in at least three public places within the jurisdiction of the County Board.  (Education Code 5092)

 

The notice shall contain:  (Education Code 5092)

 

  1. The date that the vacancy occurred or the date of the filing of, and the effective date of, the resignation

 

  1. The full name of the provisional appointee

 

  1. The date of appointment

 

  1. A statement notifying the voters that unless a petition calling for a special election pursuant to Education Code 5091 is filed in the office of the County Superintendent   within 30 days of the provisional appointment, the appointment shall become effective

 

Appointment Due to Failure to Elect

 

When a vacancy occurs because no candidate or an insufficient number of candidates have been nominated (i.e., a failure to elect) and an election will not be held, the County Board shall appoint a qualified person to the office.  This appointment shall be made at a meeting prior to the day fixed for the election and the appointee shall be seated at the organizational meeting as if elected at the election.  (Education Code 5328)

 

When an appointment is being made because of a failure to elect, the County Board shall publish a notice once in a newspaper of general circulation published in the county, or if no such newspaper exists, in a newspaper having general circulation within the county.  This notice shall state that the County Board intends to make an appointment and shall inform persons of the procedure available for applying for the appointment.  (Education Code 5328.5)

 

The procedure for selecting and interviewing candidates shall be the same as the procedures specified above in the “Provisional Appointments” section.

 

 

Legal Reference:

EDUCATION CODE: 1000  Composition and trustee area, county board of education; 1006  Qualifications for holding office, county board of education; 1007 Elections; 5090-5095  Vacancies; 5300-5304  General provisions (conduct of elections); 5320-5329  Order and call of election; 5340-5345  Consolidation of elections

ELECTIONS CODE: 10600-10604  School district elections; 11381-11386  Candidates for recall

GOVERNMENT CODE: 1064  Absence from state: 1770  Vacancies: definition: 3000-3003  Forfeiture of office: 3060-3075  Removal other than by impeachment: 6061  One time notice: 54950-54963  The Ralph M. Brown Act

PENAL CODE: 88  Bribery, forfeiture from office

UNITED STATES CODE, TITLE 18: 704  Military medals or decorations

ATTORNEY GENERAL OPINIONS: 58 Ops.Cal.Atty.Gen. 888 (1975); 81 Ops.Cal.Atty.Gen. 98 (1998)

 

 

Policy Adopted: 09-08-2016