District 2 BOE seat will not be on Nov. ballot

Published 3:21 pm Friday, August 5, 2022

There will be no election to fill the vacant District 2 seat on the Clark County Public Schools (CCPS) Board of Education this fall.

The Sun reported earlier this week that a race to fill the vacancy left by Brenda Considine’s resignation would take place on Nov. 8th, and the deadline to file for the race was next Tuesday, Aug. 9th.

However, it has since learned that decision has been reversed.

So what led to the reversal?

Clark County Clerk Michelle Turner said that she received a communication from the district on July 18th that a resignation had occurred and that the seat would be vacant as of July 26th. Turner then added the seat to the November ballot.

Considine sent her resignation letter to the school board on July 13th with an effective date of the next day. Board officials claimed in communications with Turner that the notification from the 18th was sent by mistake.

The board of education formally accepted Considine’s resignation at a meeting on Tuesday, Aug. 2nd. 

After the Sun confirmed and published the information regarding the election in a Facebook post, Turner said she was contacted by the school board’s attorney, Rebecca McCoy, and CCPS Interim Superintendent Elmer Thomas on Wednesday to see if an election was scheduled. 

Turner said she told them that there was.

On Thursday, McCoy emailed Turner a memorandum on the board’s behalf, arguing that since the resignation was accepted after Aug. 1, an election should not be held this fall due to the date Considine’s resignation was accepted.

According to KRS 160.190: “Any vacancy having an unexpired term of one (1) year or more on August after the vacancy occurs shall be filled for the unexpired term by an election to be held at the next regular election after the vacancy occurs.”

The memorandum cites numerous opinions from the Kentucky Attorney General’s office that a resignation by a public official is only effective when it is approved.

“As Ms. Considine’s resignation was not formally accepted by the Board until the Special Board Meeting on August 2, 2022, a vacancy for the Board was not created until August 2, 2022. Pursuant to KRS 160.190(4), no vacancy existed as of August 1, 2022, and therefore, no election is necessary for the Board member position in the November 2022 election,” McCoy wrote in the memorandum.

Turner said she contacted the Kentucky Secretary of State’s office to get a ruling and was told to refer the issue to Clark County Attorney William Elkins.

On Friday morning, Elkins issued this opinion in an email.

“I am of the opinion that CCBOE [Clark County Board of Education] will make the appointment without an election, or the state will do so as needed,” he wrote.

So what happens now?

The board of education has 60 days to fill the vacancy once it accepted Considine’s resignation with a majority vote. It also has 30 days after it accepted the resignation to advertise applications for a new board member. 

Per Kentucky law, once it does, the board has two weeks to advertise the position and must choose from a pool of those applicants. 

If it does not select a new board member at the end of the 60 days, then Kentucky Education Commissioner Jason Glass has 60 days to make the appointment after the failure date.

In Clark County’s case, the board has until Oct. 2nd to make an appointment. If it cannot reach a consensus, Glass must decide on an appointment by Dec. 2nd. 

Will there be an election in the future?

The term expires on Dec. 31st, 2024.

No legal precedent exists for how long an appointee may serve on a school board. Still, several opinions from the attorney general’s office support the idea that it may only be a year and that the seat should be on the ballot during the next scheduled election.

OAG 77-649 states: “A vacancy occurring on a county board of education on September 30 could not be filled at the November election for that year but would have to be filled in the general election the following year.”

OAG 75-540 states that when a board member resigned in July 1975 with a term that expired in January 1977 that “the newly appointed board member will only serve until his successor was elected in the November 1975 election to finish the unexpired term.”

Perhaps the most interesting opinion comes from OAG 80-414.

“Where a school board member, whose term was not to expire until December 1982, resigned in August 1980, the board will appoint someone to fill the vacancy until November 1980, at which time someone will be elected to fill out the unexpired term to serve until December, 1982,” the opinion reads.

Only one opinion, OAG 72-796, argues no election is necessary.

“Vacancies on school boards are not filled by election for the unexpired terms as is the case with respect to all other vacancies in elective offices,” it reads.

Ultimately, the decision rests with Turner, and she said that it is something she will consider once she and the rest of the clerk’s office get through the 2022 election.