STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6236

July 27, 1984

SCHOOLS AND SCHOOL DISTRICT:

Commencement of term of office of member of the board of education elected to fill the remainder of an unexpired term

A person elected to fill a vacancy in the office of member of the board of education of a school district of the third class for the remainder of the unexpired term, takes his or her office upon filing an acceptance of office, a written affidavit of eligibility and the oath of office.

Dr. Phillip E. Runkel

Superintendent of Public Instruction

Department of Education

Lansing, Michigan

You requested my opinion with respect to the following question:

Pursuant to the School Code of 1976, 1976 PA 451, MCLA 380.1 et seq; MSA 15.4001 et seq, Sec. 211(2) and the Michigan Election Law, 1954 PA 116; MCLA 168.1 et seq; MSA 6.1001 et seq, Sec. 644k, the school district in question holds its school elections at the same time as the city elections are held, i.e., the odd year November general elections. See, OAG, 1981-1982, No 5887, p 144 (April 23, 1981).

In the School Code of 1976, supra, Sec. 1104(4), the Legislature has provided:

Section 1102 of the same statute provides:

1954 PA 116, supra, Sec. 644h commands:

Here, a person was appointed to fill a vacancy on a board of education of a third class school district. Thereafter, pursuant to the School Code of 1976, Sec. 1104(4), supra, an election was held in November, 1983 and a different person was elected to fill the remainder of the unexpired term. Restated, the question presented is whether the person so elected takes office upon fulfilling the requirements of the School Code of 1976, Sec. 1102, supra, without waiting until January 1 following the election.

In the School Code of 1976, Sec. 1104(4), supra, the Legislature has made it abundantly clear that a person initially elected or appointed to fill a vacancy takes office upon filing the acceptance of office and taking the oath required by section 1102 of the same Code. The portion of section 1104(4) mandating that, thereafter, the vacancy shall be filled for the remainder of the unexpired term at the next annual school election, was added by 1977 PA 43. The legislative policy expressed in the added portion of section 1104(4) is that a person initially appointed to fill a vacancy shall be replaced, after the next school election, by a person elected by the voters. It would be inconsistent with that policy if a person initially appointed to fill the vacancy were to run for office and lose in the next school election and, yet, retain the office for well over a month until the January 1 following the election. The statute should be construed to effectuate the legislative intent. Zawacki v Detroit Harvester Co, 310 Mich 415, 420; 17 NW2d 234, 236 (1945).

The election law provisions of 1954 PA 116, supra, that are not inconsistent with the School Code of 1976, supra, apply to the elections of third class school districts. See, the School Code of 1976, supra, Secs. 218 and 1071, and OAG, 1981-1982, No 5887, supra, p 145. Section 644h, added to 1954 PA 116, supra, by 1970 PA 239, is inconsistent with the School Code of 1976, Secs. 1104(4) and 1102, supra, to the extent that it may be read to require that a person elected in a regular school election to fill a vacancy for the remainder of the unexpired term does not take office until January 1 following the election and such interpretation should not be observed.

It is my opinion, therefore, that a person, elected in an odd year November election to fill a vacancy on a board of education of a third class school district for the remainder of the unexpired term, takes office upon filing an acceptance of office, a written affidavit of eligibility and the oath of office as required by the School Code of 1976, Sec. 1102, supra.

Frank J. Kelley