Attorney General issues opinion regarding school board vacancies

On Oct. 27, 2022, the California Attorney General issued an opinion addressing the question posed by Assemblymember Marc Berman of “how to fill a [board] vacancy when the incumbent was elected under an old districting system, but a new districting system will apply to the seat at the next regular election.” The two specific questions posed relate to two distinct series of events, neither of which are expressly addressed in the law, making them difficult to navigate. This is especially true as school board vacancies have increased due to board member resignations and changing trustee area boundaries due to the decennial census and compliance with the California Voting Rights Act.

First, the opinion considers the situation in which a school district changes from at-large school board elections to by-trustee area elections and a vacancy arises in a seat held by a board member who was elected at large. In this scenario, the law does not provide clear guidance on whether the vacant seat should be filled using the at-large election method or the by-trustee area election method that recently has been adopted by the school district. The opinion states that the prior unrevised at-large election method should be used when filling the vacant seat.

Second, the opinion considers when a school district revises its trustee area boundaries following the decennial census and a vacancy arises in a seat held by a board member elected using the old boundaries. As with the situation above, the law is not clear on how the vacancy should be filled, but the opinion states that the old, unrevised boundaries should be used when filling the vacant seat.

In reaching these two conclusions, the Attorney General focused on the Legislature’s intent “by examining the overall language, structure, and context of the statutory scheme.” The Attorney General also looked to its “own prior opinions on similar questions” for guidance. In doing so, the opinion states that the “term of office is the key operative factor in the Education Code provisions” in question and that to “effectuate the purposeful pattern established by [the] statutes” the election method used to establish the term should continue for the duration of the term, even if the originally elected individual is not fulfilling the entire length of the term. This allows for the “established” and “purposeful” patterns for election processes in the Education Code to be fulfilled and maintained.

While Attorney General opinions are not binding law, they nonetheless provide guidance on how the law could be interpreted and courts give them weight when considering legal questions. Each of these answers provides school boards with a more certain process they may rely on when filling vacancies. To receive legal advice on how the Attorney General’s opinion impacts your specific district/COE, contact CSBA’s Legal Services team at