Friday, June 3, 2016

Uncertainty about the length of a school board appointment

UPDATE #2, 6/7/16: The board voted unanimously not to appoint anyone to the vacant board seat. As a result, we will have a special election in July—most likely on July 19.

UPDATE 6/7/16: According to guidance issued by the Iowa Secretary of State’s office today, if we make an appointment tonight to fill the vacant seat on the board, that seat would have to go up for election this November 8 (that is, at the same time as the Presidential election). Unofficially, we’re hearing from the Auditor’s office that the cost of a general election is ordinarily shared by the entities that have offices on the ballot. Because the November election uses more polling places and requires more poll workers, the cost is relatively high, so the school district could expect to spend about $75,000 if the seat is on the November ballot (as compared to about $16,000 on a July special election), unless there is a departure from past practice.

Whatever we make of this information, we’re lucky to have gotten it in advance of our decision tonight. A number of districts elsewhere in Iowa have already made appointments to vacancies—and quite possibly did so in order to save the expense of holding a special election—and are only now learning that they will have to fill those seats this November at an even higher cost.


At this coming Tuesday’s meeting, the school board will decide whether to appoint someone to the board vacancy created by Tom Yates’s resignation. If the board does not appoint someone, there will be a special election in July to fill the spot. Seven people have applied for the appointment.

One question that has turned out to be unexpectedly difficult is how long an appointed board member would serve. The governing statute says that the appointee “shall hold office until a successor is elected and qualified pursuant to section 69.12.” Section 69.12 governs vacancies that occur “in any nonpartisan elective office of a political subdivision of this state,” and says, in relevant part:
A vacancy shall be filled at the next pending election if it occurs:

(1) Seventy-four or more days before the election, if it is a general election.

(2) Fifty-two or more days before the election, if it is a regularly scheduled or special city election. . . .

(3) Forty-five or more days before the election, if it is a regularly scheduled school election.
The statute defines “pending election” as:
any election at which there will be on the ballot either the office in which the vacancy exists, or any other office to be filled or any public question to be decided by the voters of the same political subdivision in which the vacancy exists.

(Emphasis mine.) One interpretation of the italicized language is that the vacancy would be filled at the next school district election, which would mean in November 2017 (or sooner if there were a school bond vote in the meantime). That’s how I read it, and that was the district’s working interpretation.

However, a 2011 Iowa Court of Appeals opinion interpreted it differently. The case arose when a vacancy occurred on the Bettendorf City Council in January 2010. The Council appointed a replacement, and then a dispute arose about when the seat would come up for election. One side argued that the “next pending election” was the next City Council election, which would have been in November 2011. The other side argued that the “next pending election” was the state legislative and gubernatorial election in November 2010.

The Court decided that the statute required the seat to be up for election in November 2010, even though that was not a City Council election. Otherwise, the Court wrote, the language in paragraph (1) above would be superfluous.

The Court’s decision is the authoritative interpretation of the statute that lower courts are required to apply to newly arising cases, unless there is a principled distinction that would justify a different outcome.

Further complicating the matter, this year’s legislature passed an amendment to the governing statute. The amendment essentially reverses the Court of Appeals’ interpretation and requires that a vacancy like ours would be filled at the next school district election. Governor Branstad signed the amendment into law last week. But its effective date is July 1, 2016. Since our appointment would be made on June 7, the amended approach probably does not apply—though there is at least room for argument on that point as well.

The upshot is that we can’t be entirely sure how long our appointee would serve. It’s a legal issue that could be settled with finality only by the courts. It’s quite possible—even probable—that if someone litigated the issue, a court would decide that the seat would have to go up for election this November.

It is interesting to imagine a school board seat being filled on the same ballot as the presidential election, and we would certainly set a school election record for turnout. On the other hand, I’m concerned about making an appointment without knowing how long the appointed term would be, especially if there’s any likelihood that litigation will result.

On balance, I see this legal uncertainty as one more reason to allow the seat to go to a special election rather than fill it by appointment. If the seat is filled at a special election in July, the law is clear that the winner of the election will fill out the remainder of Yates’s term, which expires in September 2019.


Karen W said...

If an appointment were to put the vacant seat up for election in Sept 2017, we'd see a majority of the Board up for election in both Sept 2017 [Kirschling, Liebig, Lynch + Yates vacancy (2 year term)] and Sept 2019 [DeLoach, Hemingway, Roetlin, Yates vacancy]. Is that a good thing or not?

Anonymous said...

Karen - every 4 years a majority of the seats are up even without a resignation.