The Honorable James T. Jordan State Representative Post Office Box 518 Monticello, AR 71655
Dear Representative Jordan:
This is in response to your request for an opinion with regard to a particular school director's position on the school board following annexation under A.C.A. 6-15-207. Your questions are as follows: Can this director be made to resign immediately? If not, why not? If so, can he be replaced by appointment until the time of the next school election?
These questions are asked with regard to a director who was appointed under A.C.A. 6-15-210 to serve on the board of directors of the annexing school district. If, in fact, this Code section was properly invoked, the director should have served until the next school election which, according to your correspondence, would have been the year 1986. The director was, instead, appointed to a term of five years.
A review of case precedent indicates that the answer to your first question is "no." According to the Arkansas Supreme Court, the tenure of a school director only expires when his successor is elected and qualified. Click v. Sample, 73 Ark. 194, 197 (1904) citing School District v. Bennett, 52 Ark. 511 (1889). This principle applies when a director holds office because no successor was elected to succeed him following the expiration of his appointment. Click v. Sample, supra. The incumbent thus holds the office under this original appointment until a successor is chosen. See also, generally, Justice v. Campbell, 241 Ark. 802,410 S.W.2d 601 (1967) ("As a general rule, there is a vacancy in office whenever there is no incumbent to discharge the duties of the office, that is, whenever the office is empty or unfilled; but as long as there is any one authorized to discharge the duties of the office, the office is not to be deemed vacant so as to authorize the exercise of the power to fill vacancies in office."241 Ark. at 805-806, citing Rice v. Palmer, 78 Ark. 432,96 S.W. 396 (1906)).
A response to your third question is unnecessary in light of the foregoing.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.