Martin v. Frazier

Tom Glaze, Justice, dissenting. Í respectfully take exception to the majority decision regarding its approval of the appellees’ action that permits them to extend their terms in office without being elected by the voters of the newly-created Midland School District. The majority court, I submit, has gravely misinterpreted the relevant law thát sets forth the election procedure which becomes operative after electors vote for the consolidation of their school districts.

The case is controlled by Ark. Stat. Ann. §§ 80-449 and -450(e), particularly as those sections were amended by Act 294 of 1969. These provisions contain the pertinent procedures to follow once consolidation is approved by the voters. The General Assembly specified the purposes and need for Act 294 in its emergency clause, viz, (1) to authorize the selection of a date upon which the proposed consolidation of school districts should take effect and (2) to authorize the new districts to establish the composition of the board of directors. Those provisions of Act 294 relevant to the situation before us are:

Section 1. [§ 80-449]

If a majority of the qualified electors voting on this issue in each district shall vote for the consolidation of the named districts under this Act, such vote shall be so certified to the County Board of Education of each affected county. The new district shall be in existence on the date specified in the Agreement referred to in Section 5(e) of this Act, as amended, provided if there is no such agreement the effective date shall be the first day of the fiscal year immediately following the date of the election. The members of the Board of Directors of the district consolidated shall serve as and constitute the Board of Directors of the new district until the next regular school election.

(Emphasis added.)

Section 2. [§ 80-450(e)]

(e) Anything contained in this Section 5 to the contrary notwithstanding, the Boards of Directors of the former districts are expressly authorized to enter into an agreement, executed by the president and secretary of each district, prescribing the date the new district shall come into existence and/or defining the composition of the Board of Directors of the new district and prescribing the number of directors of the new district who shall reside in each of the former districts. Thereafter, the qualified electors of the new district shall elect successor members from each of the former districts as prescribed by the agreement. An executed copy of the agreement shall be filed with the County Clerk of each county which contains territory or a portion of the territory of each district proposed to be consolidated at least ten (10) days prior to the election provided for by this Act.

Any agreement entered into pursuant to the provisions of this Section 5(e) shall provide for staggered terms for the members of the Board of Directors of the new district.

Nothing contained in this Section 5(e) however shall authorize the creation of a Board of Directors composed of more than eight (8) members. (Emphasis added.)

The former board members of the Pleasant Plains and Floral school districts met, as authorized by the foregoing provisions, in an apparent effort to enter into a valid consolidation agreement. In that agreement, they properly named the new district Midland School District #19 (Midland) of Independence County, and provided it would be in existence on July 1,198 5. They also, quite correctly, prescribed the composition and number of directors to serve on the new school district board. In this respect, they provided for seven members, four from Pleasant Plains and three from Floral. At this point, the former board members took action that not only varied from, but far exceeded the dictates of the law.

As I mentioned earlier, the expressed purpose or intent of Act 294 — contained in the body of the law and in its emergency clause — was to allow the former board members (1) to select when the new district commenced and (2) to establish the composition of the new district. The former board members did that, but additionally they erroneously prescribed in their agreement that all former board members from both districts would continue on the board of the new Midland district “until the school election of 1986”, at which time the Board shall be composed of seven members, four of those members shall be from the former Pleasant Plains School District and three shall be from the former Floral School District, each member to be elected by his respective Board by a majority vote.” Pursuant to this agreement, the former board members met and elected their successor to serve on the next board of Midland. Neither § 80-449 nor § 80-450(e) countenance a self-perpetuating board. Section 450(e) clearly provides that the qualified electors of the new district shall elect successor members. Section 449, accordingly, provides that these board members, serving on the new consolidated board, shall serve until the next regular school election— again, when the qualified electors would elect their successors.

The majority court appears to be misled by that part of § 450(e) that provides “the qualified electors of the new district shall elect successor members from each of the former districts as prescribed by the agreement.” The court surmises this language allows the former members, serving on the newly consolidated board, the broad authority to elect their own successors. As I have pointed out, the law emphatically demands those successors be elected by the voters in the new district. If the law were otherwise, or especially as is suggested by the court, little certainty would exist concerning when or how these former or interim successors would be elected. Under the majority decision, for example, the former board members could enter an agreement that they could continue until the school election of 1999. Of course, I do not suggest this would happen, but the majority holding, I submit, permits such continuation in office without voter approval. Given only the direction that such interim board members can select their successors as however they may “prescribe by agreement”, the manner of selection, or election if you will, is left to the whim or politics of each situation.

Maybe more importantly and to the point, I believe to give former board members such broad authority to choose their successors far exceeds those expressed purposes for which the General Assembly passed Act 294. Act 294 provided for a board agreement to designate when the new district begins and how it will be composed, including the number of members who will serve. I agree with the majority that §§ 80-449 and -450(e), as amended by Act 294, give the former board members some leeway — in time at least — in establishing the new school district. Act 125 of 1961 was the original version of §§ 449 and 450, and that Act required the new district to commence immediately upon the certification of the election at which the voters approved consolidation. Act 294 permitted the former board members, by agreement, to extend when the new district must be in existence, but if no agreement was reached, the new district must be in existence by the first day of the fiscal year immediately following the date of the election. It becomes all too obvious to me that under each of the situations contemplated under Acts 125 or 294, the General Assembly intended the new district to be in existence before the regular annual school election following the consolidation election so the voters in the new school district can choose the interim board’s successors.

Because I would reverse on the court’s failure to require the interim board members’ successors be elected by the voters, I need not discuss the other points treated in the majority opinion. Suffice it to say, that I believe the former board members’ agreement also exceeded the law when it established the terms of office for successor board members.

Hickman and Hays, JJ., join in this dissent.