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Illinois School Board Journal
November/December 2006

Who has authority to fill board vacancy?

by Diane E. Elliott

Diane E. Elliott of DeKalb, Illinois, is an attorney whose practice is concentrated in the areas of school law, government and labor law.

School board members are elected citizens who serve the school district. Under Illinois law, school board members must be residents of the school district they serve (105 ILCS 5/10-10). When an elected school board member moves outside the school district boundaries, yet wants to continue to serve on the school board, it creates a problem.

Resolving this problem requires looking at both the Illinois Election Code and the Illinois School Code, as well as making a factual determination that a vacancy has occurred on the board. If a vacancy is created, who fills that vacancy the regional superintendent or other members of the school board?

When a school board member moves outside of the school district, it would appear he or she is no longer eligible to serve out the remainder of his or her term because of the change in residency. Presumably, the change in residence would lead to the board member's voluntary resignation.

However, it is not always this simple. Recently, the First District Appellate Court addressed whether local school boards have the authority to declare a vacancy, and subsequently to act to fill the vacancy. In Brown v. Johnson, [362 Ill.App.3d 413, 839 N.E.2d 634, 298 Ill. Dec. 311 (1st Dist. 2005)], the court addressed the issue of who determines when a vacancy has occurred on a school board. The court's decision made it clear that the responsibility for determining when a vacancy occurs lies with the school board and not the regional superintendent.

In this case, the school board president received a package with documents that allegedly showed two of the board members were not residents of the school district. After reviewing the information, the attorney determined that the two board members were not residents of the school district and concluded they had vacated their seats on the school board.

During a public session, the board voted those two seats on the board to be vacant. The two school board members whose seats had been determined to be vacant filed a lawsuit challenging the board's authority to make that determination, as well as the board's authority to fill the seats.

The regional superintendent got involved in the case and filed a petition with the court, claiming that the regional superintendent was the only person authorized under Section 3-15.5 of the Illinois School Code to determine a vacancy existed and to fill it. (105 ILCS 5/3-15.5)

The School Code and the Election Code both contain sections that address school board election procedures. Under Section 10-20 of the School Code, a school board "may exercise all other powers not inconsistent with [the School Code] that may be requisite or proper for the maintenance, operation, and development of any school or schools under the jurisdiction of the board." (105 ILCS 5/10-20)

Section 10-10 of the School Code states that if a vacancy occurs on a school board, the remaining members of the board have the authority to fill the vacancy. (105 ILCS 5/10-10)

Section 10-11 of the School Code lists specific instances when a vacancy occurs:

1. Death of the incumbent.

2. A resignation in writing filed with the secretary or clerk of the board.

3. Becoming a person under a legal disability.

4. Ceasing to be an inhabitant of the district in which he or she was elected.

5. Conviction of an infamous crime, or of any offense involving a violation of the official oath, or of a violent crime against a child.

6. Removal from office.

7. Decision of a competent tribunal declaring his or her election void.

8. Ceasing to be an inhabitant of a particular area from which elected. (105 ILCS 5/10-11)

The Election Code states that an elective office becomes vacant when "if the office is local, his or her ceasing to be an inhabitant of the district, county, town or precinct for which he was elected." (10 ILCS 5/25-2(4)) Additionally, the Election Code provides that when a vacancy allegedly exists, "the officer, body, or county board, who has authority to fill the vacancy by appointment, or to order an election to fill such vacancy, shall have the power to determine whether or not the facts occasioning such vacancy exist." (10 ILCS 5/25-3(a))

Determining whether an individual is a resident is a fact-based inquiry. The school board can investigate and determine whether a vacancy exists when an individual's residency is questioned.

The court in Brown concluded that, under the School Code, a school board member who is no longer a resident of the district has no specific duty to resign. The court determined that the School Code and the Election Code clearly indicate the legislature intended for the school board itself to have the power to determine whether a vacancy exists and to have the authority to fill that vacancy.

Unfortunately in Brown v. Johnson, the court did not address the issue of procedural due process rights to notice and a hearing if a board member's residency is questioned.

Procedural due process rights are inherent constitutional rights, triggered when a deprivation of life, liberty or property occurs. The court did not determine whether or not a school board member has a property interest in his or her seat on the board in Brown v. Johnson. If such a property interest exists, the procedural due process protections of prior notice and an opportunity to be heard would be triggered before the board member's seat could be taken away.

Because Brown did not address the property interest issue, at this time it also is unclear what constitutes notice and opportunity to be heard in these circumstances.

The School Code itself does not provide a procedure for removal. It also does not describe what might constitute sufficient notice to the board member whose residency is questioned, or what form a hearing must take. Providing sufficient informed notice to the board member that residency has become an issue, as well as an opportunity to be heard, are two aspects of this issue the remaining school board members must be cognizant of and cautious in addressing to insure no violation of the board member's due process rights occurs.

It is important for school boards to recognize that, based on the Brown v. Johnson decision, they have the authority to determine, through a factual inquiry, that a vacancy exists on the school board. Following the determination that a vacancy exists, the remaining school board members have the authority under the School Code and the Election Code to fill the vacancy.

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