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.

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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.

School board agenda for May 24

Some of the items on this week’s board agenda:

We’ll discuss the process for filling the vacancy on the board created by the departure of board member Tom Yates. More information here; see also this post.

We’ll vote on approval of an amended certified budget, receive our annual asset protection review, and hear an update on the district’s Wellness Policy.

At our work session after the board meeting, we’ll continue our discussion of secondary attendance areas. Information here.

The full agendas are here and here; feel free to chime in with a comment on anything that catches your attention.

How does the school board fill a vacancy?

UPDATE 5/25/16: Last night, the board voted to move ahead with an appointment process to fill the vacancy. I supported the motion, simply because the state statutes appear to require us to at least begin such a process, and because there is no harm in talking about an appointment. I’m still inclined, however, to think that an election makes a lot of sense. Some other board members also recognized the potential value of filling the seat through an election.

We scheduled a special board meeting for June 7 to decide whether to make an appointment. Applications for the appointment are due by 4 p.m. on June 1; the application form is here. See the timeline here. Again, applicants should understand that the board may end up letting the seat go to election rather than appoint someone. Failure to submit an application for the appointment will not affect your eligibility to run as a candidate if there is a special election; that is a separate process.

As I mentioned below, it is also possible that people could file a petition to skip the appointment process and go straight to an election. That petition would have to be filed by June 2. If such a petition is filed and validated, we would cancel our June 7 special meeting.

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Because of the resignation of one of our board members, Tom Yates, the school board now has a vacancy to fill. As I understand it, this is how the law handles school board vacancies.

State law says that the school board “shall” fill a vacancy by appointment. However, there are two potentially applicable situations under which the vacancy may be filled through an election. First, if the board does not agree on an appointment within thirty days of the vacancy, then there has to be a special election to fill the vacancy. The vacancy occurred on May 13. That means that if the board does not fill it by June 12, there will have to be a special election. Our only scheduled meeting before that date is on May 24.

Second, even if the board intends to appoint someone, there will be a special election if voters petition for one. The petition would have to be signed by eligible voters totaling thirty percent of the votes cast in the last school election—which, in this case, means 2,190 signatures. (As I understand it, “eligible” voters means anyone who is eligible to register to vote, even if they are not actually registered.) The petition would have to be filed with the board secretary within two weeks after the board notified the public of its intention to fill the vacancy with an appointment. The board published that notice on May 19, so any petition to trigger an election would have to be filed by June 2.

Any special election to fill the seat would have to be held between sixty and seventy days after the vacancy occurred—which means Election Day would be either July 12 or July 19.

An election would fill the seat for the remainder of the term, which expires in September 2019. An appointment would fill it until the next school election, which is in September 2017 (unless the district schedules any bond vote sooner). [This is a correction from the initial version of this post; see the comment, below.]

Again, this post reflects my understanding of how the process works, based on my reading of the statutes. Please do not take it as the official word of the district, the school board, or the Auditor’s Office.

The board plans to discuss how to fill the vacancy at its meeting tonight (May 24). My initial inclination, especially given that the election would fill the seat for over three years, is that an election makes more sense than an appointment, for the reasons I wrote about here in 2014.