What happens in Arkansas if a school board member misses the 10-day oath-of-office deadline?

Plain-English summary

Representative Grant Hodges asked four questions about a school board member who reportedly took the oath of office, but possibly outside the 10-day window required by Ark. Code Ann. § 6-13-617(a)(1).

Attorney General Leslie Rutledge concluded:

1. On disqualification: The plain language of § 6-13-617(c) provided that the failure to take the oath "as required under subsection (a)" resulted in (a) the individual not being qualified to serve and (b) a "holdover." The AG read that to mean the 10-day window mattered, and a director who missed it was likely disqualified.

2. On a late oath curing the problem: The AG read the statute to suggest that taking the oath after the 10 days had passed did not cure the disqualification. But the AG flagged a textual ambiguity. A related statute, § 6-13-608(c)(2), expressly used the phrase "the time provided under § 6-13-617(a)(1)" to mean the 10-day period, while § 6-13-617(c) only said "as required under subsection (a)." The AG urged the General Assembly to clarify.

3. On who can challenge the qualification: The school board did not have clear authority to act. The seven vacancy-triggering grounds in § 6-13-611(a) (residence change, attendance failures, felony, military duty, resignation, death) did not include oath issues. A taxpayer suit under the Arkansas Constitution's "illegal exaction" clause (art. 16, § 13) might theoretically be a route for a private citizen, though the AG noted it was unclear whether removal would actually be available through that vehicle.

4. On "holdover": The term refers back to Article 19, Section 5 of the Arkansas Constitution: "All officers shall continue in office after the expiration of their official terms until their successors are elected and qualified." So if a newly elected director failed to qualify, the prior director kept the seat.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What did § 6-13-617(a)(1) say at the time?
A: It required each elected director, "within ten (10) days after receiving notice from the county clerk . . . of his or her election," to subscribe to the prescribed oath before someone authorized to administer oaths. The clerk was then to receive certification of the oath and "immediately commission" the director, who would "enter at once" upon their duties.

Q: Why did the AG hedge instead of giving a clean yes-or-no on disqualification?
A: Two adjacent statutes used different phrasing for the same concept. Section 6-13-608(c)(2) explicitly cross-referenced "the time provided under § 6-13-617(a)(1)" when describing how a vacancy arose after a holdover term. Section 6-13-617(c) only said the director must take the oath "as required under subsection (a)." Reading the two together, you could plausibly argue that the legislature meant the 10-day deadline to bind in both contexts. You could also plausibly argue that if the legislature had wanted § 6-13-617(c) to enforce the deadline strictly, it would have said so the way § 6-13-608 did. The AG concluded that disqualification was "more likely than not," but said legislative clarification would be helpful.

Q: What is a "holdover" director?
A: Under Article 19, Section 5 of the Arkansas Constitution, an officer continues in office past the expiration of their term until a successor is "elected and qualified." So if a successor was elected but failed to qualify (here, by missing the oath deadline), the previous director simply kept serving until the next valid election.

Q: Could the school board have removed the director who missed the deadline?
A: The AG's reading was no, not directly. Section 6-13-611(a) listed seven specific circumstances giving rise to a vacancy: moving outside the district, missing three consecutive regular meetings without military or illness reason, missing six regular meetings in a calendar year, felony conviction, active military duty, resignation, and death. Oath issues were not on the list. Section 6-13-608(c)(2) gave the board limited authority to fill a vacancy, but only when the missed-oath occurred at the expiration of a holdover term, which the requesting representative had not flagged as the situation. The AG saw no other statutory basis for the board to police the oath itself.

Q: What recourse did private citizens have?
A: The AG suggested, without committing, that a taxpayer suit under Article 16, Section 13 (the "illegal exaction" provision) might be one route. Such suits attack the unlawful expenditure of tax dollars, and paying a salary to a disqualified director could conceivably qualify. The AG was clear it was "unclear whether a taxpayer lawsuit of this nature would be an avenue to accomplish the removal" of the director, distinct from challenging the spending itself.

Q: What practical effect did this have?
A: As an AG opinion, it was persuasive but not binding. It alerted the requesting legislator that the statute was ambiguous and likely needed amendment, and it gave school boards and county clerks a starting framework for handling oath-deadline disputes. The opinion made clear that the safest reading was that 10 days mattered, but courts had not addressed the issue.

Background and statutory framework

Arkansas school board members are elected to staggered terms and take office on a fixed schedule that depends on certification by the county clerk. The 10-day oath rule serves a practical function: it forces the new director to qualify quickly after the election is certified, so the board has settled membership before its next round of business.

Section 6-13-617 was amended several times in the years before 2017, and the surrounding sections (including § 6-13-608 on vacancies and § 6-13-611 on grounds for vacancies) were not always updated in lockstep. That is the source of the textual mismatch the AG flagged. Whether any later session of the General Assembly cleaned up the discrepancy is something a current practitioner would need to confirm by checking the latest codification.

Citations

• Ark. Code Ann. § 6-13-617(a)(1), (b)(1), (c)
• Ark. Code Ann. § 6-13-608(c)(2)
• Ark. Code Ann. § 6-13-611(a), (c)
• Ark. Const. amend. 55, § 1(a)
• Ark. Const. art. 16, § 13
• Ark. Const. art. 19, § 5
• Weiss v. McFadden, 353 Ark. 868 (2003)
• McCoy v. Walker, 317 Ark. 86 (1994)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2016-108
March 6, 2017
The Honorable Grant Hodges
State Representative
P.O. Box 2607
Rogers, AR 72757-2607
Dear Representative Hodges:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

This is in response to your request for an opinion on the following questions:

1) In light of Ark. Code Ann. § 6-13-617(a)(1), where a newly elected board member failed to take the oath of office within 10 days after his notice of election by the county clerk had been received, would that board member be qualified to serve?

2) Would the newly elected board member be qualified to serve if they took the oath of office after the statutory 10-day time period?

3) If the member is not qualified to serve, what is the duty of the school district, particularly its administration if they become aware of the potential deficiency, if any, and what other recourse do private citizens have to challenge the member's qualification to serve?

4) What is meant by "a holdover" as listed in § 6-13-617(c)(2)?

RESPONSE

Taking all of your questions together, I gather that they relate to a sitting school board member who took the requisite oath of office, but possibly not within the 10-day time frame prescribed in Ark. Code Ann. § 6-13-617. In my opinion, a newly-elected school board member's failure to take the oath of office within the 10-day time frame required by Ark. Code Ann. § 6-13-617 likely results in that director's disqualification. Due to some differences between section 6-13-617 and a related section (Ark. Code Ann. § 6-13-608), however, I believe additional legislative clarification would be best.

With regard to your third question, for the reasons explained below, it appears that the school board has no clear duty or authority under the circumstances at issue to address any challenge to the member's qualification. It is my opinion in response to your fourth question that the term "holdover" is to be understood in light of Arkansas Constitution, article 19, section 5, which states that "[a]ll officers shall continue in office after the expiration of their official terms until their successors are elected and qualified."

DISCUSSION

Question 1: In light of Ark. Code Ann. § 6-13-617(a)(1), where a newly elected board member failed to take the oath of office within 10 days after his notice of election by the county clerk had been received, would that board member be qualified to serve?

Question 2: Would the newly elected board member be qualified to serve if they took the oath of office after the statutory 10-day time period?

I will address these two questions together because they both turn on Ark. Code Ann. § 6-13-617(c), which states that an elected member of a school district's board of directors will be disqualified if he fails to "have the oath administered as required under subsection (a) of [section 6-13-617]":

The failure of an elected director to have the oath administered as required under subsection (a) of this section will result in:
(1) The individual's not being qualified to serve for the purposes of Arkansas Constitution, Article 19, § 5; and
(2) A holdover.

Subsection 6-13-617(a) states in part as follows regarding the requisite oath:

Each director elected for an initial or nonconsecutive term of office shall, within ten (10) days after receiving notice from the county clerk . . . of his or her election . . . subscribe to the following oath before an individual authorized to administer oaths . . . .

The first rule of statutory interpretation is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Courts will construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect will be given to every word in the statute if possible. When statutory language is plain and unambiguous, the meaning of the statute must be determined from the plain meaning of the language used.

Applying these precepts, I believe it likely follows from the plain language of the above subsection 6-13-617(c) that to be qualified, a newly-elected school board director must take the oath within the prescribed 10-day period. According to this subsection, the director must "have the oath administered as required under subsection (a) of [section 6-13-617]," and the latter subsection includes the 10-day requirement.

While it is therefore my conclusion that the failure to have this oath administered within 10 days likely results in the disqualification of the elected director, I will note that the question may not be entirely free from doubt. Another statute more specifically refers to the "time provided under" subsection 6-13-617(a)(1) to make clear its reference to the 10-day time period. Under Ark. Code Ann. § 6-13-608, a vacancy arises if a director who is elected following a "holdover term" fails to take the oath within the prescribed time frame:

If at the expiration of the holdover term a person is not elected to fill the position at the annual school election or the person elected fails to subscribe to the director's oath of office within the time provided under § 6-13-617(a)(1), the position is vacant and the school district board of directors shall fill the vacancy as provided under § 6-13-611.

The referenced "time provided" clearly means the 10-day time period. And thus, a person elected to the school board following a holdover term plainly must take the director's oath within 10 days after receiving the notice of the election from the clerk. In contrast, subsection 6-13-617(c) makes no reference to "the time provided" under subsection 6-13-617(a). Instead, it simply refers to a failure to "have the oath administered as required under . . . ." When subsection 6-13-617(c) is considered together with subsection 6-13-608(c)(2), therefore, it is arguably unclear whether a newly-elected director's failure to subscribe to the oath within the 10-day time frame results in disqualification.

In my opinion, it is more likely than not that the director would be deemed disqualified in that circumstance. But legislative clarification would be helpful in order to alleviate any slight uncertainty created by the different language in sections 6-13-608 and 6-13-617.

Question 3: If the member is not qualified to serve, what is the duty of the school district, particularly its administration if they become aware of the potential deficiency, if any, and what other recourse do private citizens have to challenge the member's qualification to serve?

Given your previous questions and this question's reference to a "potential deficiency," I take it that this relates to a director who took the oath of office and was commissioned. Your question indicates a concern that, nevertheless, the director failed to take the oath with the 10-day time frame under subsection 6-13-617(a) prior to assuming office. If in fact the oath was not administered within the 10-day period, then as stated above, I believe the director is likely disqualified (although legislative clarification would be beneficial, as also discussed above).

I find no clear authority in the statutes, however, for a school board to determine whether in fact a director failed to take the oath in time, such that "holdover" under subsection 6-13-617(c) should have resulted.

A school board does in some circumstances have the authority to determine a director's qualifications. Seven such circumstances are set forth under Ark. Code Ann. § 6-13-611(a), which authorizes the board to determine, based on an evidentiary hearing, whether a vacancy exists. Importantly, however, the circumstances giving rise to your question, involving the director's oath of office, are not included under this statute. And there appears to be no other basis in the statutes for a school board to review any issue concerning the oath of office of a sitting director. It must therefore be concluded that the school board does not have the authority to act in that circumstance.

Finally, in my opinion, with regard to what recourse a private citizen may have in challenging the qualification of a school board member, a taxpayer suit pursuant to Ark. Const. art. 16, § 13 (sometimes called the "illegal exaction" provision) might theoretically be one possible course of action. I must note, though, that it is unclear whether a taxpayer lawsuit of this nature would be an avenue to accomplish the removal of such a school board member.

Question 4: What is meant by "a holdover" as listed in § 6-13-617(c)(2)?

It is my opinion that the term "holdover" is to be understood in light of Ark. Const. art. 19, § 5, which states that "[a]ll officers shall continue in office after the expiration of their official terms until their successors are elected and qualified."

Sincerely,
LESLIE RUTLEDGE
Attorney General