Legal opinions convince Mehlville board it acted appropriately in leaving seat vacant

Diehl says two legal opinions ‘validated’ decision of board.

By EVAN YOUNG

Written opinions from the Missouri attorney general’s office and the Mehlville School District’s own attorney have the Board of Education convinced it acted appropriately in leaving one of its seats vacant until the April election.

The board last week received letters from Missouri Solicitor General James Layton and attorney Robert Useted regarding its unanimous decision last month to suspend board policy and leave the board seat formerly held by Karl Frank Jr. open until the April 5 election.

Frank resigned Nov. 18.

Layton’s Dec. 8 letter was addressed to 97th District state Rep. Walt Bivins, R-Oakville, who on Nov. 22 asked Missouri Attorney General Chris Koster for an opinion on the board’s decision.

“It has been brought to my attention that the Mehlville School District Board of Education may be in violation” of Missouri Statute 162.261, Bivins wrote in a letter to Koster, “The resigning board member had given ample notice for the Board to solicit someone to fill the vacancy but (the board) failed to do so.

“My question to you would be if an immediate appointment is required under (state law) or is a grace period allowed? If a grace period is allowed, in what time frame should the vacancy be filled so that the citizens of the district are fully represented?” Bivins wrote.

The board’s policy states if a vacancy occurs, the remaining board members “shall appoint a person to serve until the next school board election.”

In making the motion Nov. 18 to leave Frank’s seat vacant, board Secretary Larry Felton contended it likely would take until January to select a new board member, who then would serve for only three meetings until the April election.

But Missouri law states a school board vacancy “shall be filled by the remaining members of the board.”

Felton has said attorneys with the Missouri School Boards’ Association advised him the board could leave the seat vacant until the election because the state law, unlike Mehlville’s policy, does not mandate a time frame for the board to fill it.

The solicitor general said as much in his response to Bivins.

While state law instructs the board to fill any vacancy, it “does not instruct the board to fill a vacancy at any particular time. Thus it neither mandates immediate action nor authorizes a grace period,” Layton wrote.

Superintendent Terry Noble on Nov. 29 e-mailed the school district’s attorney, John Gianoulakis, seeking an opinion on the board’s decision.

Useted — Gianoulakis’ partner at Kohn, Shands, Elbert, Gianoulakis & Giljum — replied on Dec. 7, “We conclude that, although the matter is not free from doubt, Mehlville’s board is not in violation of state law … We do not believe the board has acted illegally or been in dereliction of its duty in this matter.”

No Missouri case law or attorney general opinions directly address the vacancy issue the board faced last month, Useted wrote.

However, Useted cited a case in which a judge found the use of the word “shall” in state law was “discretionary, not mandatory” because it was “used in a time limitation, and the statute did not list the consequences of failure to act within the prescribed time.”

The attorney later added, “We are also persuaded that the relatively short amount of time left in the vacated seat’s term provides the board the discretion to wait.”

Noting Bivins’ letter implied district residents wouldn’t be “fully represented” until Frank’s seat were filled, Useted stated, “In our view, the citizens are ‘fully represented’ even where, as here, there is a vacancy for a short time. School board members are elected by the district’s voters as a whole; they are not elected from any particular geographic subunit of the district.

“In this way the vacancy is different from a vacancy in the U.S. Congress, where representatives are elected by district and senators are elected by states, and where a vacancy truly leaves a district or a state under-represented in the whole body.”

However, Useted cautioned that “as is pointed out by (Executive Editor) Mike Anthony’s editorial in the Call on December 2, there is an additional risk in not filling the vacancy.”

In his Dec. 2 column, Anthony wrote that a Call reader recently had pointed out that Missouri law requires multiple school board vacancies be filled by “the county commission.”

“If another board vacancy were to occur before the April election, the (St. Louis) County Council then would fill the two vacant seats,” Anthony wrote. “That would be unacceptable as the appointments would be made by elected officials having no connection to the school district instead of the remaining duly elected Mehlville school board members.”

Useted wrote, “The likelihood of another vacancy arising within the next few months would appear to be small, but obviously the risk is greater than zero and thus should be taken into account by the board.”

Board President Tom Diehl told the Call last week the Layton and Useted letters “validated our position.”

“Larry (Felton) did the research before we reached that decision,” Diehl said, adding, “This board has always operated transparently and aboveboard.”