Legal reasoning supporting petition to place Kimbrough on board

(The following suggestions supporting the petition for a writ of mandamus were filed Wednesday afternoon in Newton County Circuit Court. The petition directs the four remaining board members and board secretary Janet Waldo to install Jim Kimbrough as a member of the Joplin R-8 Board of Education.)

SUGGESTIONS IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS PURSUANT TO RSMo §§ 536.150, 162.261.1, 162.301.3

LAW AND ANALYSIS

A. An affirmative vote of the majority of members attending a meeting where a quorum is present will fill a board vacancy.

The Joplin School District is a seven-director district which is controlled and governed by a seven-member School Board. RSMo. § 162.261.1. Operations of the Board are governed by RSMo § 162.301.3, which states:

“A majority of the board constitutes a quorum for the transaction of business, but no contract shall be let, person employed, bill approved or warrant ordered unless a majority of the whole board votes therefor.”


The statute thus permits the Board to operate with less than all of its members present; only a quorum of four members is required. See, Trusler v. Tate 941 S.W.2d 794, 800 (Mo. App. W.D. 1997). The only statutory exceptions are where a contract is entered, person employed, bill approved or warrant ordered, such matters requiring an affirmative vote of the majority of the whole board. It is clear from the plain language of the statute that the legislature requires a majority vote of the whole board only in these four matters, but as to all other business a quorum of the board is sufficient. The implication from this language is that a number less than a majority of the whole board is enough to transact all other business.

While the legislature used the term “quorum,” it did not specify how many votes are required to pass a measure once a quorum of members are present. Absent such specification, the common law1 rule applies. Hardesty v. City of Buffalo, 155 S.W.3d 69, 74 (Mo.App. S.D. 2004). It is a longstanding principle of statutory construction that the words used in a statute are to be “construed with reference to the principles of common law in force at the time of their passage; and hence statutes are not to be interpreted as effecting any change in the common law unless clearly so indicated in the statute.” Id.; Martinez v. State, 24 S.W.3d 10, 17-18 (Mo.App. E.D 2000). In RSMo. § 1.010, the legislature provided that the common law of England is the rule of action and decision in this state.

Under the common law, a majority of all the members of a board constitute a quorum, and so long as a quorum of the board is present, an affirmative vote of the members present is sufficient to pass a measure. Hardesty, 155 S.W. 3d at 74; see also, Trusler, 941 S.W.2d at 800-01. In Hardesty, the Court applied the common law definition of quorum to a city’s board aldermen comprised of six members. Answering the question of how many affirmative votes were needed for the board to transact business, the Court stated: “[F]our members of the City’s board of aldermen would constitute a quorum; an affirmative vote from three of those four aldermen would be sufficient to transact the City’s general business.” Id. (emphasis added); see also, State ex rel. Kiel v. Riechmann, 142 S.W.304-311-12 (1911) [holding that only a quorum can sit as the committee, but that, in the absence of a controlling statute to the contrary, a majority of a quorum is sufficient for a statutory body to conduct business and "such measure is valid and binding as if adopted by the entire vote of the committee"]; see also, Trusler, 941 S.W.2d at 800 [“The statutory requirement that a ‘quorum’ shall consist of a majority of the Board and that a quorum can conduct the Board’s business is consistent with the general practice in regard to private and governmental boards.”]
In 59 AM. Jur. 2d Parliamentary Law § 9, it is stated:

Under common law, majority of the body constitute a “quorum,” which is the number of assembled members that is necessary for a decision-making body to be legally competent to transact business, and if a quorum is in attendance, a vote of a majority of those present is sufficient for valid action. At common law, a majority of the body constitute a quorum. In the absence of a valid rule establishing a different criterion, a quorum of a legislative body is a majority of the membership. This rule can be changed only by general law or charter, not by internal rule, even when the body in question is given general rule-making powers.” (Emphasis added).

In McQuillin The Law of Municipal Corporations § 13:34, it is similarly stated:

“Following the rules of the common law, in the absence of applicable charter or statutory provision to the contrary, a majority of a definite body, or of the governing body of the corporation, as the board of directors, the board of council members, the council, etc. consisting of a definite number, when duly met, constitute a quorum for the transaction of business, and the vote of the majority of those present (there being a quorum) is all that is requisite for the adoption or passage of an ordinance or by law or motion, or the doing of any other act which the body has power to do. This rule applies to the commission form of municipal government. Where the law is silent on the subject the common-law rule will prevail and cannot be changed by the council, as by fixing the quorum necessary for the transaction of its business at two-thirds of the members elected. Neither can it be changed by a municipal board by rule.” [Emphasis added.]

Section 162.301.3 expressly directs the School Board to conduct business by quorum except in those four limited circumstances not applicable here. Nothing in section 162.301.3
indicates that the legislature intended to change the common-law rule that a majority of a quorum of a collective body is empowered to act for the body.

B. The Quorum Rule of Section 162.301.3 Applies to Filling Vacancies On The School Board.

RSMo. § 162.261.1 provides that a vacancy in a seven member school board “shall be filled by the remaining members of the board ...2” (emphasis added). While section 162.1261.1 does not expressly state the number of votes needed from remaining members to fill the vacancy, rules of statutory construction dictate that a mere majority of the remaining members is all that needed.

The primary rule of statutory construction is to “ascertain the intent of the lawmakers from the language used, to give effect to that intent if possible, and to consider the words used in the statute in their plain and ordinary meaning.” State v. Knapp, 843 S.W.2d 345, 347 (Mo. banc 1992). When enacting statutes, the legislature intends that “[w]ords imparting joint authority to three or more persons shall be construed as authority to a majority of the persons, unless otherwise declared in the law giving the authority.” RSMo. § 1.050.

In determining legislative intent, consideration should also be given to statutes involving similar or related subject matters when those statutes shed light on the meaning of the statute being construed.” State v. Knapp, 843 S.W.2d at 347. It is said that “statutes relating to the same subject matter are in pari materia and should be construed harmoniously.” PDQ Towers Servs., Inc. v. Adams, 213 S.W.3d 697, 698 (Mo. App. W.D. 2007). “This principle that statutes should be construed harmoniously when they relate to the same subject matter is all the more compelling when the statutes are passed in the same legislative session.” State v. Knapp, 843 S.W.3d at 347.

Sections 162.261.1 and 162.301.3 are part of a comprehensive statutory scheme governing School Districts in Missouri. Both statutes were passed in the same legislative session in 1963. It is obvious from a plain reading of both statutes that the legislature intended the quorum rule of section 162.301.3 to govern the filling of vacancies in section 162.261.1. Had the legislature intended for the remaining board members to fill a vacancy by a greater consensus than a majority of a quorum, it knew how to do so and would have used language expressing that intent. Whenever the legislature intended a greater consensus from a school board it utilized language making that intent clear. For example, in matters of contracts, employing persons, bills and warrants, the legislature expressly required a vote of the “majority of the whole board.” Section 162.301.3. Also, when deciding whether to join the Missouri School Boards’ Association the legislature expressly requires a “two-thirds vote of its members.” Section 162.011. Thus, it is clear that the legislature knew what language to use when it wanted a heightened consensus among school board members. The omission of a heightened consensus when filling a board vacancy was therefore not a legislative oversight. The legislature obviously viewed filling a board vacancy part of the “transaction business” which needs only a majority of the members present at a quorum. Section 162.301.3.

Applying this analysis to the Joplin School Board meeting of May 26, 2015, it is evident that upon the written resignation of Randy Steele there were then five remaining members3. A majority of five remaining members would be three and Kimbrough received affirmative votes from three members. Sections 162.301.1, 162.261.1 and 1.050 are authority for a vote by this majority of three of the five remaining members to constitute valid action, provided a quorum was present. See, Attorney General Opinion No, 284, 1963, p. 2.

C. The Board Cannot Increase the Number of Votes Needed to Fill a Vacancy by Internal Policy.

Joplin School Board Policy BBE-1 states:

“If a vacancy occurs on the Board of Education, the remaining members shall appoint a person to serve until the next school board election, when a director shall be elected for the unexpired term.”
…
“Appointments shall be made through a formal motion and seconded, and an affirmative vote by a majority of the Board.”
…
“An individual who is resigning from the Board shall not participate in choosing his/her successor.” (Emphasis added.) [Exhibit 1]

The language of Policy BBE-1 is ambiguous. It is unclear whether the policy is simply a reiteration of the statutory rule that a vacancy is filled by a majority of members present at a quorum, as stated in sections 162.301.3, 162.261.1, or whether it purports to increase the number of votes to a majority of the whole Board (i.e., a minimum of four). Assuming the Policy’s intent is to increase the number of votes required to fill a vacancy to something more than the legislature intended by statute, the Policy is in excess of the Board’s authority and is therefore void.

The exception to the legislature’s directive of section 1.050 that “[w]ords imparting joint authority to three or more persons shall be construed as authority to a majority of the persons, unless otherwise declared in the law giving the authority” does not allow a public body to create rules to the contrary. The language “unless otherwise declared in the law” means unless otherwise declared by statute. Oregon County R-IV School Dist. v. LeMon, 739 S.W. 2d 553, 557 (Mo.App. S.D. 1987) [construing “except otherwise provided by law” to mean statute.]

Moreover, it is fundamental that the powers of a school district are limited to those expressly granted by statutes. Wright v. Board of Education St. Louis, 246 S.W. 43, 45 (Mo. 1922). When the power to make rules is conferred by a statute, the Board may establish only those rules that are clearly contemplated by the legislature, as evidenced or necessarily implied by the language of the statue. Id. In other words, school officers do not have powers other than those conferred by a legislative act, either expressly or by necessary implication, and doubtful claims of power are resolved against them. Id.

No Missouri statute confers upon a school board the power to increase the number of votes required to fill a vacancy, either expressly or impliedly. RSMo. § 162.621 states that the School Board “shall have general and supervising control, government and management of the public schools and public school property of the district in the city and shall exercise generally all powers in the administration of the public school system therein.” Among the powers enumerated in section 162.621, is the power to “make, amend and repeal rules and bylaws for its meetings and proceedings, for the government, regulation and management of the public schools and school property in the city, for the transaction of its business, and the examination, qualification and employment of teachers, which rules and bylaws are binding on the board of education and all parties dealing with it until formally repealed.” The powers conferred by section 162.621, do not include the power to increase the number of votes needed to fill a vacancy, and a court will not engraft upon a statute provisions which do not appear in explicit words or by implication from other language in the statute. State ex rel. Rogers v. Board of Police Com’rs of Kansas City, 995 S.W.2d 1, 6 (Mo.App. W.D. 1999).

It is well settled that a public body may not create an internal rule that conflicts with a statute and if it does the rule must fail. Pulitzer Pub. Co. v. Missouri State Emp. Ret. Sys., 927
S.W.2d 477, 480 (Mo. App. W.D. 1996); Missouri Hosp. Ass’n v. Missouri Dep’t of Consumer Affairs, Regulation & Licensing, 731 S.W. 2d 262, 264 (Mo. App. W.D. 1987). A conflict with a statute exists where a public body makes a rule that “prohibits what a statute permits.” See, Client Services, Inc. v. City of St. Charles, 182 S.W.3d 718, 724 (Mo.App. E.D 2006). A school board, like any other public body, is creature of statute and, as such, has only such authority as is delegated to it by the legislature. Savanna R-III School Dist. v. Public School Retirement System of Mo., 950 S.W.2d 854, 858 (Mo. Banc 1997) [“As ‘creatures of the legislature,’ the rights and responsibilities of school districts are created and governed by the legislature.”]; Pulitzer Pub. Co., 927 S.W.2d at 480. “Rules and regulations may be promulgated only to the extent of and within the authority delegated by the legislature.” Pulitzer Pub. Co., 927 S.W.2d at 480. “Rules are void if they are beyond the scope of the legislative authority conferred upon the state agency or if they attempt to extend or modify statutes.” Id.; Missouri Hosp, 731 S.W. 2d at 264; Revelle v. Mehvill School Dist., R-9, 562 S.W.2d 175, 179 (Mo.App. 1978) [To the extent a school board’s regulations restricted the board’s power to renew the contract of a probationary teacher those regulations would be contrary to statute and void.]

This limitation on the Board’s ability to change its voting requirements is consistent with the common law meaning of “quorum.” At common law, the rule allowing a majority of board members present and constituting a quorum to conduct business cannot be changed by internal rule of the board. See, 59 AM. Jur. 2d Parliamentary Law § 9; 4 McQuillin Mun. Corp. § 13:34 (3d ed).
This is also the longstanding rule in other states. In Matawan Regional Teachers Assn. v. Matawan-Aberdeen Regional School. Dist. Bd. Of Ed., 538 A.2d 1331 (N.J.Sup Ct. 1988), the Supreme Court of New Jersey was faced with the question of whether a school board could, by internal bylaw, require a two-thirds majority vote of the board to adopt a policy rather than a simple majority of a quorum. The statute conferring powers on the school board to make rules for the transaction of its business did not indicate the number of votes necessary to adopt rules. Inasmuch as the statute was silent in that regard, the Court resorted to the common law rules, explaining:

[The statute] is silent with respect to the number of votes necessary to adopt rules and to govern and manage the district. It must be assumed that by its silence the Legislature intended the common-law rule to apply. i.e., a majority vote of the members of the board constituting a quorum shall be sufficient. [Citations omitted.] At common law, a majority of a public body constitutes a quorum. [Citation Omitted]. Thus the Legislature has empowered a majority of the majority of the local board to adopt bylaws and conduct the board’s business.

Holding that the board lacked authority to create a policy requiring a two-thirds majority of the board, the Court stated:

We reject the argument that the Legislature has merely established a minimum number of affirmative votes necessary for local board action, which the board may increase in its bylaws to assure a broader consensus. Depriving the majority of its authority and responsibility to govern in favor of a broader consensus carries the risk of inaction where action is warranted.
Id. at 1333.

The Supreme Court of Wisconsin reached the same conclusion in In re Walters, 72 N.W.2d 535 (Sup Ct. Wisconsin 1955) [Since legislature did not prescribe number of votes required for passage of a matter before county school committee, majority of committee constitutes quorum, and majority of quorum may decide the matter, and committee has no implied power to adopt rule that greater number shall constitute a quorum].

The rule prohibiting a Board from increasing the necessary votes needed to fill a vacancy is supported by sound reasons of public policy. If the School Board were allowed to abrogate the common law rule by its own policy requiring an enhanced majority, a greater burden would be
placed on the Board when a vacancy or vacancies arise, which could, in turn, encourage needless delay in carrying out the board’s duties. See, Ronald Brown Charter School v. Harrisburg City School District, 928 A.2d 1145, 1150 (Penn. 2007).

The rule prohibiting a Board from increasing the necessary votes needed to fill a vacancy is supported by sound reasons of public policy. If the School Board were allowed to abrogate the common law rule by adopting its own policy requiring an enhanced majority, a greater burden would be placed on the Board when a vacancy or vacancies arise, which could, in turn, encourage needless delay in carrying out the board’s duties. See, Ronald Brown Charter School v. Harrisburg City School District, 928 A.2d 1145, 1150 (Penn. 2007).

Here, Policy BBE-1 could arguably be construed as an attempt to prohibit the Board from filling a vacancy by a vote of the majority of members attending a meeting where a quorum is present. If that is the Policy’s intent, then the Policy prohibits what sections 162.261.1 and 162.301.3 permit, and thus conflicts with the general laws of the state on the same subject matter. If so, the policy is void.
V. Application To the Joplin School Board’s Meeting of May 26, 2015.

As of the May 26, 2015, Board meeting, the Board consisted of six members: Jeff Koch, Dr. Debbie Fort, Jennifer Martucci, Lynda Banwart, and Michael Landis. By statute, a majority of the whole board (i.e., four members) constituted a quorum for the transaction of business, such business including the selection of a new board member to fill the vacancy created by Lane Roberts’ resignation. Randy Steele resigned just before the open session portion of the Board meeting where the Board voted to fill the vacancy. Accordingly, a quorum was met by the attendance of five members of the seven member board. Thus, an applicant needed to receive a majority vote of three of the five members (the total number of members present with a quorum) in order to win the vacant seat. Mr. Jim Kimbrough received affirmative votes from Dr. Debbie Fort, Jennifer Martucci, and Jeff Koch and thereby won the vacant seat.

While the Board did not, at the time, appreciate the significance of Mr. Kimbrough receiving affirmative votes from three of the five remaining members attending the meeting, such oversight can be remedied by declaring Mr. Kimbrough to have received the requisite votes and swearing him in as a member of the board. Even though the Board president erroneously declared that the motion to appoint Mr. Kimbrough to the vacancy did not pass at the May 26, 2015 meeting, the Minutes from that meeting have not yet been approved by the Board and nothing would appear to prohibit the Board from correcting those Minutes to reflect that Mr. Kimbrough was, indeed, appointed. Courts are mindful that the administration of school matters is usually in the hands of citizens who are not learned in the law and substantial rather than technical compliance with parliamentary rules is sufficient. See Malloy v. Reorganized School District R-1 of Reynolds County, 631 S.W.2d 933, 937 (Mo. Banc 1982). As such, “courts look with disfavor upon technical objections to proceedings.” Id.