Elshoff, 122418 OHAGO, AGO 2018-35

• Case Date: December 24, 2018
• Court: Ohio

Tess Elshoff, President AGO 2018-35 No. 2018-035 Ohio Attorney General Opinions Ohio Attorney General December 24, 2018          Tess Elshoff, President          State Board of Education          25 South Front Street          Columbus, Ohio 43215          SYLLABUS:          1. Pursuant to R.C. 3.01, an appointed member of the State Board of Education may vote at the organization meeting of the board in January 2019 when the member’s term expires on December 31, 2018, and a successor has not been appointed.          2. A successor appointee may vote at the organization meeting of the State Board of Education in January 2019 when his appointment has been delivered to the Clerk of the Ohio Senate, but a vote on his confirmation has not yet occurred, provided that the appointee meets the qualifications of a member of the State Board of Education.          Dear President Elshoff:          You have requested an opinion about the authority of incumbent or successor members of the State Board of Education to vote at the board’s January 2019 organization meeting. You have informed us that the terms of several appointed members of the State Board of Education will expire on December 31, 2018. The Governor has not yet appointed their successors, but may do so in the coming days. In light of this, you ask the following questions:

1. May an appointed member of the State Board of Education vote at the organization meeting of the board in January 2019 when the member’s term expires on December 31, 2018, and a successor has not been appointed by the Governor?

2. If the Governor makes appointments to the State Board of Education prior to the January 2019 organization meeting, may a successor appointee vote at that organization meeting when his appointment has been delivered to the Clerk of the Ohio Senate, but a vote on his confirmation has not yet occurred?

         Authority of Incumbent Board Member to Vote at Organization Meeting          The State Board of Education is charged with the “general supervision of the system of public education in the state[,]” R.C. 3301.07, and consists of nineteen members, R.C. 3301.01(A). Eleven members are elected in accordance with R.C. 3301.03, and eight members are appointed by the Governor with the advice and consent of the Senate. R.C. 3301.01(A). RC. 3301.02 provides the term of office of the members of the State Board of Education as follows:

(A) Elected voting members of the state board of education shall be elected as required by expiration of respective terms, each for a term of four years or until a successor is elected and qualified. One elected member shall be elected from each district respectively in which the term of office of a board member expires on the first day of January following the election. The term of office of each member so elected shall begin on the first day of January immediately following this election.

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(C) Appointed voting members of the board shall serve four-year terms beginning the first day of January and ending on the thirty-first day of December. Except as provided in division (D) of this section, members may be reappointed.

(D) No person, elected or appointed, shall hold the office of member of the state board of education for a period of longer than two successive terms of four years. Terms shall be considered successive unless separated by a period of four or more years. Only terms beginning on or after January 1, 1996, shall be considered in determining an individual’s eligibility to hold office.

         Your first question asks whether an appointed member of the State Board of Education may vote at the organization meeting of the board in January 2019 when the member’s statutory term expires on December 31, 2018, and a successor has not yet been appointed. R.C. 3301.02(A) provides that elected voting members of the State Board of Education shall serve “a term of four years or until a successor is elected and qualified.” (Emphasis added). R.C. 3301.02(C) does not include similar language with respect to appointed voting members of the State Board of Education.          However, R.C. 3.01 is a general law that provides that “[a] person holding an office of public trust shall continue therein until his successor is elected or appointed and qualified, unless otherwise provided in the constitution or the laws of this state.” R.C. 3.01 applies broadly to any “person holding an office of public trust” and permits such public officials to continue holding office beyond their statutory term, unless the Ohio Constitution or state law expressly provides otherwise. R.C. 3.01 is therefore the starting point in analyzing whether a member of the State Board of Education may continue to hold his office beyond his statutory term when his successor has not been elected or appointed.          R.C. 3.01 is intended to prevent vacancies in offices of public trust and to ensure the continuous and efficient operation of government. See 1982 Op. Att’y Gen. No. 82-074, at 2-207. As explained by the Ohio Supreme Court:

The purpose of [the former version of R.C. 3.01] is to insure that all lawful incumbents of public office shall hold over and thus avoid a hiatus between the end of the term and the qualification of the newly appointed or elected incumbent. It applies to all public offices or positions of public trust, except where there is a provision in the Constitution or statute to the contrary. By its provisions, the term of the person holding the office or public trust ends as soon as the term of service of a duly elected or appointed and qualified successor begins.

State ex rel. Bolsinger v. Oridge, 134 Ohio St. 206, 214, 16 N.E.2d 334 (1938); see also generally State ex rel. Wheatley v. Kirk, 134 Ohio St. 178, 185, 16 N.E.2d 261 (1938) (the predecessor to R.C. 3.01 is intended to provide “security and continuity in government”); State v. Howe, 25 Ohio St. 588, 599 (1874) (General Code Sections 8 and 10 (now R.C. 3.01-.02) guard against “all the evils contemplated as likely to result from vacancies … by confining the exercise of the power to fill vacancies in office to those cases where no one is authorized by law to discharge the public duties”). R.C. 3.01 reflects “the settled policy of the state to avoid if practicable, a vacancy in a public office.” 1946 Op. Att’y Gen. No. 749, p. 80, at 89.          When a public officer holds over beyond his statutory term of office pursuant to R.C. 3.01, the additional time served by the official is considered a continuation of his old term of office, rather than a new term. State ex rel. Glander v. Ferguson, 148 Ohio St. 581, 587, 76...