Legal Opinion Requested on not Filling Board Seat

Decision 'may be in violation' of state law, Bivins' letter says.

EVAN YOUNG

Staff Reporter - Call Newspapers

December 01, 2010 - A local legislator wants Missouri Attorney General Chris Koster's opinion on the Mehlville Board of Education's recent decision not to fill an open seat.

District 97 state Rep. Walt Bivins, R-Oakville, wrote Koster last week asking him to weigh in on the issue out of a concern the school board "may be in violation" of state law.

On Nov. 18, after accepting board member Karl Frank Jr.'s resignation, the board voted unanimously to suspend its policy and leave Frank's seat vacant until the April 5 election, when his term expires.

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."

The board would solicit letters for two weeks from residents interested in filling the seat. Separate open meetings then would be held for the board to review the letters, conduct interviews with candidates and vote on an appointment.

In making the motion Nov. 18 to leave Frank's seat vacant, 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.

"If we had a position that was open for a year, year and a half, we would certainly solicit bids," Felton said at the meeting.

But while the board suspended its own policy to leave Frank's seat vacant, Bivins wrote in a Nov. 22 letter to Koster, "It has been brought to my attention that the Mehlville School District Board of Education may be in violation" of Missouri statute 162.261. That law states a school board vacancy "shall be filled by the remaining members of the board."

Bivins wrote, "The resigning board member had ample notice for the board to solicit someone to fill the vacancy but (the board) failed to do so."

He asked Koster if the law requires an "immediate appointment" to fill a board seat, "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?"

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.

Superintendent Terry Noble said in an interview after the Nov. 18 board meeting that MSBA's board policy service is designed to ensure school boards comply with state law.

"Based on their legal advice — and that's what it was, legal advice — we were within our rights to do what we did," Noble said. "For whatever it's worth, that's what their legal opinion was."

Board President Tom Diehl last week downplayed Bivins' letter to Koster but added, "If the attorney general says otherwise, we'll do it."

The board's decision drew ire from members of the Mehlville Community Taxpayers Association, a group that formed this year out of a belief that the school board is out of touch with the community.

Rich Franz of the MCTA confirmed last week that Bivins' letter to Koster was sent at the group's request.

Bivins, who served on the Board of Education from 1997 to 2003, joined the MCTA and four fellow former board members this fall in opposing the district's unsuccessful 88-cent tax-rate increase proposal, Proposition C.