New terms for the new year; timeline for filling a board vacancy
Kentucky School Advocate
December 2020
By John Fogle
KSBA Staff Attorney
When do new terms for school board members start and when should they be sworn in?
The new four-year term begins on Jan. 4. Members can be sworn in on or before Jan. 4. Board members must actually take two oaths — one verbal and one written. The verbal oath is found in Section 228 of the Kentucky Constitution. This oath must be given by an active, retired or senior status state justice or judge; any active, retired, or senior status federal judge with Kentucky jurisdiction; any member of the Kentucky General Assembly; any county judge executive; notary public; clerk of a court; or justice of the peace within the county of the board member.
The official who administers the oath must certify in writing that the oath was administered. The certification must be filed with the county clerk. A separate written oath is set out in KRS 160.170. This oath may be prepared as a form document to be completed and signed by the board member and notarized. The document must be maintained as an official board record.
State law says that the written oath should be signed before the board member assumes his or her duties. It is therefore recommended board members for the 2020 election cycle take the oaths on or before Jan. 4. There are Attorney General opinions and cases that say the constitutional oath may be taken a reasonable time after a term starts when there is a reasonable excuse for the delay, but board members should consult with school district counsel if they encounter this issue.
If no one was elected to a seat, what happens to that seat?
If no one was elected to fill a vacant seat, either on the ballot or by write-in state statute says that a vacancy exists as of Jan. 1, 2021. Keep in mind that seats left open after this year’s election will be filled by the other board members.
In 2019, the General Assembly passed a law allowing school boards to fill their own vacancies. Under law dating back to the passage of the Kentucky Education Reform Act in 1990, the commissioner of education filled such vacancies. Under the new law, boards with open seats have 60 days from a vacancy to fill the seats.
Within 30 days of the vacancy the board must advertise the vacancy on the school district’s website and in the newspaper with the largest general circulation in the county or district. KSBA recommends fulfilling the print advertisement requirement by placing one ad each week for two weeks, including information on where to access the application forms and deadline for submissions.
The board may choose to interview candidates, but it is not required. Such interviews may be conducted in closed session under KRS 61.810(1)(f) (allowing closed session discussions that might lead to the appointment of a “member”). The boa rd can select an applicant by majority vote in an open board meeting.
If a school board fails to fill the vacancy within 60 days, the law says that the commissioner of education will fill the vacancy.
Who sets the agenda for the January meeting if the chair of the board was not re-elected?
Board members should look at their policy that covers the creation of the regular meeting agenda. Most polices call for the superintendent and chair to cooperate on the development of the agenda and allow for input from other board members, but there are variations. For a meeting on or after Jan. 4, if the chair was not re-elected, it would make sense for the vice chair to work with the superintendent on the regular meeting agenda for January. Note also that board policies typically, but again, not universally, call for an organizational meeting in January to allow for the election of the chair and vice chair if the terms (of up to two years as permitted by KRS 160.160) are set to expire and for setting the regular meeting schedule for the next year.
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