May 13, 2002
Kenneth E. Vance
Green Bank, WV 24934
Dear Mr. Vance:
I am in receipt of your correspondence to me dated March 29, 2002, wherein you request a legal interpretation of eligibility for membership on county boards of education. Specifically, you have asked whether or not you, as a Field Deputy working for the County Assessor, are eligible to be a member of the Pocahontas County Board of Education.
You explain that you are a part-time hourly worker hired in 1996 by the County Assessor. The job is not an elected office and you took no oath for the position. You receive no paid vacation, no paid holidays, and no benefits. You are paid mileage when you work in the field.
As a Field Deputy, you collect data from individuals that live in Pocahontas County for
taxation purposes. The data you collect consists of the year, make, and model of vehicles, motorcycles, boats and trailers owned by county residents. You also take care of completing farm forms and recording improvements made to residences. Once the data is collected, you turn it over to other individuals in the Assessors office who enter it into the computer system to produce tax tickets.
West Virginia Code ? 18-5-1a states, in pertinent part:
No person shall be eligible for membership on any county board who is not
a citizen, resident in such county, or who accepts a position as a teacher or service
personnel in the school district in which he or she is a resident or who is an elected
or appointed member of any political party executive committee, or who becomes
a candidate for any other office than to succeed oneself.
No member or member-elect of any board shall be eligible for nomination,
election or appointment to any public office, other than to succeed oneself, or for
election or appointment as a member of any political party executive committee,
unless and until after that membership on the board, or his status as member-elect
to the board, has been terminated at or before the time of his filing for such
nomination for, or appointment to, such public office or committee.
Thus, it is clear that a member of a county board of education cannot hold any other public office while serving on the board of education. However, the determination as to whether a certain position, such as Field Deputy, is a public office involves an analysis of statutes and other legal authorities which are outside of the area of school law. As such, in the absence of clear guidance from the Legislature or the West Virginia Supreme Court of Appeals, I am unable to fully answer your question.
It may, nonetheless, be helpful for you to review the case of State ex rel. Carson v. Wood, 154 W. Va. 397, 175 S.E.2d 482 (1970), in analyzing the question you have posed. In syllabus point five of Carson, the Court set forth certain criteria to be considered in determining whether a position is a public office:
Among the criteria to be considered in determining whether a position is an office
or a mere employment are whether the position is created by law; whether the
position was designated [as] an office; whether the qualifications of the appointee
have been prescribed; whether the duties, tenure, salary, bond and oath have been
prescribed or required; and whether the one occupying the position has been
constituted a representative of the sovereign.
Further, ?[p]roceedings in which the question of the ultimate title to and the eligibility and the qualification of a person to hold and continue to occupy . . . office . . . are a removal proceeding under [West Virginia Code] ? 6-6-7; a quo warranto proceeding which may be prosecuted by the attorney general or the prosecuting attorney of the county; and an information in the nature of a writ of quo warranto which may be prosecuted by those officers or any interested person under this section and [West Virginia Code] ? 53-2-4. State ex rel. Porter v. Bivens, 151 W. Va. 665, 155
S.E.2d 827 (1967). These are all avenues which you could choose to pursue if you find that you still have questions as to your eligibility as a member of the local board of education.
Hoping that I have been of service, I am
State Superintendent of Schools
cc: Dr. James B. Phares, Superintendent, Pocahontas County Schools