We at OSBA get a lot of questions about board vacancies. This topic is tricky because often board vacancies happen unexpectedly or under less-than-ideal circumstances, and the timing requirements under RC 3313.11 can be awkward. The first step is to recognize when a vacancy occurs, so that the board can ensure that it acts within the applicable timelines. Board vacancies occur when a member resigns, moves out of the district, is removed from office, passes away or otherwise becomes ineligible to hold the office. For resignations, a board member can resign immediately or on a stated date. Vacancies also occur when no one runs for election to the board, and a sitting board member’s term expires.
However a vacancy happens, the board should make sure it knows the date it occurs because this is when the timeline in RC 3313.11 is triggered. The statute says that the board must act to fill the vacancy at its “next regular or special meeting,” which is held at least 10 days after the vacancy occurs. The board must act to fill the vacancy within 30 days, or its authority to fill the vacancy will pass to the probate court. This means the board generally has a 20-day window to fill the vacancy between the 10th and 30th day after the vacancy occurs. As to the language in the statute requiring action at the “next” meeting after the vacancy, there is case law suggesting that this does not actually mean that the board has to act at the first meeting that occurs subsequent to the vacancy within the timeframe. However, a conservative approach may be to comply literally with this requirement if possible.
The law provides very few requirements as to how the board should fill the vacancy. It simply states that “[a] majority vote of all the remaining members of the board may fill” the vacancy. The statute provides no parameters around how the board should solicit interested candidates, the application process, interviewing candidates, or what criteria by which the board should select candidates. Many boards therefore choose to outline a selection process in board policy. The advantages to this approach are that the board will have a concrete roadmap to follow when a vacancy arises. It also encourages the application of neutral and transparent selection criteria, which will be beneficial for the board when it makes its decision. Once the appointment has been made, the treasurer is required to notify the local board of elections.
Questions also arise about the length of the term of the new board member appointed as a result of this process. The answer to this question depends on when the vacancy occurs, how much time is left in the term and when the next regular board of education election is. RC 3319.11 sets the following rule: “Each person selected by the board or probate court to fill a vacancy shall hold office for the shorter of the following periods: until the completion of the unexpired term, or until the first day of January immediately following the next regular board of education election taking place more than ninety days after a person is selected by the board or probate court to fill the vacancy.” Regular board of education elections occur in November of every odd-numbered year.
Another question that may arise is whether a board member may lengthen their term by resigning and subsequently filling a vacancy that has arisen on the board. RC 3319.11 clearly answers this question and forbids this process. However, this does not mean that an individual who was defeated in an election for a seat on the school board would be ineligible to fill a vacancy in the years after their term ended if the board properly follows RC 3313.11 and its applicable board policies.
OSBA has several resources available for boards experiencing a vacancy, which you can find here. Members are also welcome to contact OSBA’s legal division with questions about filling board vacancies at 855-OSBA-LAW.