BOARDS OF EDUCATION — VACATION OF POSITION UPON MOVING FROM WARD OR ATTENDANCE AREA — FILLING VACANCY If a member of a local board of education moves from a ward to an outlying district in which another board member resides, the board member changing his residence vacates his position ipso facto. Your second question must be answered in the following manner: Upon the creation of a vacancy in the office of member of a local board of education by a change of residence by a member, the local board of education may, within seventy (70) days appoint a member to fill said vacancy. After the expiration of seventy (70) days from the creation of the vacancy by a change of residence by a member of the board, the vacancy so created may be filled only by a special election called by the county election board pursuant to 70 O.S. 5-112 [70-5-112] (1971). The Attorney General has considered your request for an opinion wherein you ask, in effect, the following questions: 1. If a member of a local board of education moves from a ward to another ward or attendance area in which another board member resides, does said board member vacate his position ? 2. If the first question is answered in the affirmative, does the local board of education have the authority to declare that office vacant and appoint someone to fill that vacancy ?" Title 70 O.S. 2-104 [70-2-104] (1975), provides: "No person shall be elected or voted upon, nor shall his candidacy be submitted or considered, at any school district election for membership on the board of education of the school district whether a dependent school district, an independent school district, or an area vocational-technical school district, unless he is a school district elector of the district and shall have filed a notification and declaration of his candidacy with the office of the county election board of the county wherein the supervision of the school district is located between the hours of 8 :00 a.m. on Monday and 5 :00 p.m. on Wednesday, and the second week prior to the date of such school district election. Provided, that the office of any school board member shall become vacant when such member moves his residence to a place outside such school district or into the ward or attendance area wherein another board member resides and such vacancy shall be filled as provided in this code. "If, within the filing period as provided herein, only one person files a notification and declaration of candidacy for an office as a member of the board of education of a school district, said person shall be deemed to have been elected to the office and no election shall be held for such office." Title 70 O.S. 5-107A [70-5-107A] (1975), provides in pertinent part: "2. One member of the board of education shall be elected by the electors of the school district to represent such district. If during the term of office to which he was elected a member shall cease to be a resident of such district for which he was elected, his office shall become vacant and such vacancy shall be filled as provided in 70 O.S. 5-112 [70-5-112]." Title 70 O.S. 5-112 [70-5-112] (1971), provides: "Any vacancy occurring on the board of education of a school district shall be filled by the board of education of such district for a period extending until the next regular school district election, at which time an election conducted as provided for in this code shall be held to fill any balance of the unexpired term; provided, however, that if the board of education does not fill the vacancy by appointment within seventy (70) days after the same occurs, it shall be mandatory on the part of the county election board to call a special election to fill the vacancy for the unexpired term, which election shall be held for the election of a board member only and said election shall be conducted in the same manner as the regular annual school election." In the body of your letter requesting an opinion you point out that your question relates to a school district with approximately 1500 students and that board members are elected from four wards and a outlying area. Your question involves a situation where a board member of one of the wards moves to an outlying area in which another board member already resides. From a plain reading of 70 O.S. 2-104 [70-2-104] above, it is apparent that when a member of the board of education changes his residence to another "ward or attendance area wherein another board member resides" that a vacancy occurs ipso facto. Your second question may also be answered by a plain reading of the statutes. Under the authority of 70 O.S. 5-112 [70-5-112] above, the local board of education has the authority to appoint a member to fill a vacancy within seventy (70) days after the vacancy occurs. If the board fails to make an appointment, it then becomes necessary that the county election board call a special election to fill the vacancy. It should be further pointed out that as a general rule, no judicial declaration or adjudication that a vacancy has occurred is necessary. A vacancy in office for any of the causes enumerated in the Constitution or a statute is usually regarded as occurring at the time of the happening of the event which is the cause of the vacancy, and no judicial determination that a vacancy has occurred is necessary. See 67 C.J.S. Officers, 50(d), page 211. From the date of the happening of the event, i.e. the change of residence by a board member, or a period of seventy (70) days, the local board of education may fill the vacancy created by the change of residence by appointment. Thereafter, a special election must be called by the county election board to fill the vacancy. During the period of time from the creation of the vacancy by change of residence and the time that a new member is seated pursuant to either an appointment by the board or a special election the member serving may continue under color of title until his successor is appointed or elected and thereby qualified. This result is inescapable under the authority of Article XXIII, Section10 of the Oklahoma Constitution. It is, therefore, the opinion of the Attorney General that your first question must be answered in the affirmative. If a member of a local board of education moves from a ward to an outlying district in which another board member resides, the board member changing his residence vacates his position ipso facto. Your second question must be answered in the following manner: Upon the creation of a vacancy in the office of member of a local board of education by a change of residence by a member, the local board of education may, within seventy (70) days appoint a member to fill said vacancy. After the expiration of seventy (70) days from the creation of the vacancy by a change of residence by a member of the board, the vacancy so created may be filled only by a special election called by the county election board pursuant to 70 O.S. 5-112 [70-5-112] (1971). (MICHAEL CAUTHRON) (ksg)