Oregon Advisory Opinions March 18, 1974: OAG 74-27 (March 18, 1974)

Oregon Attorney General Opinions

1974.

OAG 74-27.

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DISCUSSION

A school district budget election called under ORS 310.360 would be a "special election" within the provisions of Oregon Laws 1973, ch 796, § 6, which requires special elections held by certain districts

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to be held on specified dates. School districts, intermediate education districts and community college districts are included. Oregon Laws 1973, ch 796, § 4(22).

Ch 796, § 7 originally provided as follows:

"(1) A special election called by a district election authority shall be held on:

"(a) The third Tuesday in February;

"(b) The fourth Tuesday in March;

"(c) The first Tuesday in May;

"(d) The second Tuesday in June;

"(e) The fourth Tuesday in September; or

"(f) The first Tuesday after the first Monday in November.

"(2) A district shall not hold a special election on any day not mentioned in subsection (1) of this section."(fn1)

It will be observed that the permissible dates in February to June were generally five weeks (35 days) apart, though in some cases it would be six weeks. (i.e. March - May in 1974.) This year, the first Tuesday in May and the second Tuesday in June are five weeks apart. Since under ORS 310.360(1) and ORS 310.330 the board's

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order calling an election must be made and certified to the county clerk at least 35 days before the election, it is apparent that it would be difficult to hold a second election exactly 35 days after defeat of the first proposal. Nevertheless in our opinion a school board could even before the first election decide its course of action in the event of defeat: resubmission of the same proposal, or submission of a new proposal. It could enter an order and certify it to the county clerk even before May 17, calling a second election for June 11, providing that the order would be null and void if the budget proposal is approved by the voters on May 17.

However, Oregon Laws 1973, ch 796 § 7 was substantially amended in the recent Special Session by Oregon Laws 1974, ch 45, § 3 (Enrolled HB 3312). The Act carried an emergency clause and is already in effect. The permissible election dates are now as follows:

"(a) The fourth Tuesday in January;

"(b) The third Tuesday in March;

"(c) The first Tuesday in May;

"(d) The third Tuesday in June

"(e) The second Tuesday in July;

"(f) The first Tuesday in August;

"(g) The third Tuesday in September;

"(h) The first Tuesday after the first Monday

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in November." (emphasis supplied)(fn2)

The intervals between election dates, in 1974, are eight, seven, six, three, four, six and seven weeks. The May-June interval is now six weeks, seven days more than the 35 needed. The June-July and July-August intervals are too short to permit calling an election on the next permissible date after a defeat in June, or in July, but in every other case there is sufficient time.

ORS 310.360(1) requires that the board:

". . . shall make a determination upon the question of increasing the tax levy and fixing the date of the election in the manner provided in ORS 310.330 [exception not applicable] . . ."

ORS 310.330 provides for the making and entry:

". . . of an order for a special election on the question and shall certify to the county clerk [etc] . . . The determination and certificate shall be made not less than 35 days before . . . the day specified for the special election in the order." (emphasis supplied)(fn3)

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Thus in order to call an election on the third Tuesday in June, the board would be required to order the election no later than May 14, in 1974, and certify its order and "explanation" to the clerk on the same day. This would be one week after the date of the May 7 election.

The notice requirements for the second election would not be difficult to meet. Under ORS 259.100, the election officer must be notified of the newspaper in which the notice will be published at least 30 days before the election, and the first notice must be published at least 15 days before the election. Both of these time limits could be met. Alternatively, under ORS 259.110 notice can be mailed by registered mail to all qualified voters in the district, not more than 15 nor less than 10 days before the election.

On the question of when a newly elected member of the board of an intermediate education district takes office, Oregon Laws 1973, ch 796, § 5(3) provides:

"The term of a board member elected at a regular election held in a district shall commence on the first day of July next following the election."

This provision applies to all districts included within the scope of Oregon Laws 1973, ch 796, including intermediate education districts. But ORS 334.090 specifically provides:

"(3) Newly elected or appointed members of the intermediate education district board shall take office at the meeting of the intermediate education district board next following such election or appointment."

Thus, if an election of board members is held in May, followed by an organizational meeting in May or June, under ORS 334.090 a

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newly elected director would take office at that organizational meeting, before July 1.

Does Oregon Laws 1973, ch 796, § 5(3) amend and supersede ORS 334.090? Amendment by implication is not favored; and since ORS 334.090 was amended in another respect by ch 796, § 45, with the language of subsection (3) unchanged, there is strong support for holding that ORS 334.090(3), relating specifically to intermediate education districts, prevails over ch 796, § 5(3) if there is a conflict between them.

It is suggested that the conflict may be resolved by reference to subsection (4) of the same section 5 which creates the apparent conflict. As enacted, ch 796, § 5(4) provided:

"(4) Each district board shall hold a regular organizational meeting in July each year following the regular election of board members."

Under section 5(1) and (2), that regular election will be held on the first Tuesday in May, or on any earlier special election date called in the same year. (See ch 796, § 6, as amended by the special session, discussed above.) Thus there would always be a "regular organizational meeting" in July . It therefore seems reasonable to construe "first meeting" in ORS 334.090, for a newly elected member, to mean first "regular organizational meeting." This would accord with the legislative purpose to achieve uniformity in the procedural requirements for all special districts.

In another respect, however, ch 796 preserves for intermediate education districts an election provision which differs from that established for all districts, including IED's, by ch 796, § 5.

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We have just alluded to § 5(1) and (2), time of election. But ORS 334.045(2), as amended by ch 796, § 48, still provides that in an unzoned IED board members shall be elected at the state-wide general primary election. There were other amendments to the same subsection, and it can hardly be asserted that the legislature only inadvertently failed to delete the language providing for an election date differing from that provided by section 5 for all districts generally. (This provision, however, affects only one district in the state.)

But any attempt to preserve the uniformity sought by ch 796 must fail in view of a special session amendment to the language of section 5 (4) quoted above. As amended by Oregon Laws 1974, ch 45, § 1, subsection (4) now reads:

"Each district board shall hold a regular organizational meeting each year. The regular organizational meeting shall be held following the date for the regular election of board members and not later than the last day of July following such date."

The effect of this change is to permit an organizational meeting to be held before July; perhaps as early as the end of January.

The purpose of this special session amendment was to eliminate a conflict between ch 796, § 5(3) and ORS 334.100, which requires an IED board to hold its organizational meeting within 30 days after the regular annual election. Since that election is ordinarily on the first Tuesday in May, the organizational meeting would have to be held no later than early June, in conflict with the requirement of ch 796, § 5(3) that the organizational meeting be held in July. This conflict did not exist as to other types of districts not previously subject to

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any equivalent of ORS 334.100. The conflict could have been eliminated by amending or repealing ORS 334.100; but section 5 was instead amended to permit an intermediate education district to hold its organizational meeting before July 1, as required by ORS 334.100. No other type of district would have any occasion to hold its organizational meeting before July 1, before its newly elected members take office.

This affirmation by the legislature that an IED may and in fact shall hold its organizational meeting before July 1, coupled with the ordinary practice of participation by incoming members in an organizational meeting, leads us to the conclusion that the legislature did not intend ch 796, § 5(3) to govern intermediate education districts, or to impliedly amend or repeal ORS 334.090(3). We further conclude that a newly elected member of an intermediate education district board takes office at the first meeting of the board held after his election.