May 13, 2002

Norman Alderman
HC 82, Box 223A
Marlinton, WV 24954

Dear Mr. Alderman:

I am in receipt of two pieces of correspondence from you dated March 29, 2002, wherein you request several legal interpretations, and March 30, 2002, wherein you again express concerns over the residency of your superintendent and the eligibility of certain individuals for membership on the Pocahontas County

Specifically, you have asked the following questions:

1. "Can a current school board member also be a member of a Public Service District and/or the County Board of Health, both of which are positions appointed by the county commission?"

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 or not a certain position, such as Public Service District member or County Board of Health member, is a public office involves an analysis of the statutory authority for that specific position, which necessarily lies 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 the eligibility of a member of your local board of education.

2. "Can a current school board member also be the deputy assessor?"

The answer to this question is the same as the answer to question number one, above.

3. "How do the above relate to candidates for board of education who are currently members of public offices?"

Again, West Virginia Code 18-5-1a states:

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. (Emphasis added)

Accordingly, an individual who presently holds a public office is eligible to become a candidate for the county board of education. However, before the individual actually becomes a member of the board, that is, enters upon his or her duties as a board member, the individual must resign from the public office he or she presently holds. This course of action has been viewed as proper under the statute since as early as 1954, when the Attorney General held that a member of the Democratic County Executive Committee, who intended to become a candidate for the board of education, need not resign from his public office until such time as he was ready to enter into his school board duties. 45 Opp. Att'y Gen. 349 (1952).

4. "Can a member of a Soil Conservation District, a political subdivision of the state of West Virginia, be a candidate for board of education.?"

There is nothing in West Virginia Code 18-5-1a which prevents a member of a Soil Conservation District from becoming a candidate for a county board of education.

5. "Must a school superintendent reside in the county he serves?"

The qualifications and duties of county school superintendents are set forth in West Virginia Code §18-4-1 to 18-4-12. During his or her tenure in office, a superintendent must be a bona fide resident in the county which he or she serves. This does not mean that a superintendent must have only one dwelling place in only one county.

Hoping that I have been of service, I am

Sincerely,

/s/

David Stewart
State Superintendent of Schools

DS/mp