FAQ: Are Your Governing Board Members Properly Seated

Are your governing board members properly seated? As political subdivisions, school district and JTED governing board members are “officers” occupying an “office” for the purposes of Title 38 of the Arizona Revised Statutes.  What this means is that the provisions of Title 38 that address when a public “officer” vacates a public “office” are directly applicable to governing board members of both school districts and JTEDs.  Arizona Revised Statutes (“A.R.S.”) §38-291 defines several circumstances under which a public officer can be deemed to have “vacated” that public officer’s office or position.  Of those twelve (12) circumstances, the most likely to have an impact on the seating of school district or JTED Governing Board Members is A.R.S. §38-291(7), the failure to discharge the duties of the office for three (3) consecutive months.   In the relevant part, A.R.S. §38-291(7) states the following,

“An office shall be deemed vacant from and after the occurrence of any of the following events before the expiration of a term of office: (7)  The person holding the office ceasing to discharge the duties of office for the period of three consecutive months”

It is important to note that vacating the office occurs as a matter of law without the need for a proceeding or notice.  In other words, a failure by a school district or JTED governing board member to discharge his or her duties for three (3) consecutive months results in a vacancy automatically.

A governing board member who vacated his or her office is not permitted to vote on anything during a meeting, cannot be given privileged information, cannot be reimbursed for travel expenses (that were incurred after the vacancy), and cannot be included in executive sessions.  Any votes undertaken by a governing board member who vacated the office are potentially void and need to be reviewed on a case-by-case basis.  The vacant Governing Board Member seats also affect how a quorum is calculated, which should be addressed prior to any scheduled Governing Board meetings.

If you are unsure if a current Governing Board Member is properly seated to vote because of the Governing Board Member’s failure to discharge the duties of the office for three consecutive months or any other of the twelve (12) reasons listed under A.R.S. §38-291, you should contact your attorney as soon as possible to determine what, if any, corrective actions are needed.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Are Your Governing Board Members Properly Seated, or any other estate planning matters, please feel free to contact at  480.461.5300, log on to udallshumway.com,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.