Kansas Attorney General Opinion 1992-119

ROBERT T. STEPHAN
ATTORNEY GENERAL
September 14, 1992
ATTORNEY GENERAL OPINION NO. 92- 119
Thomas Powell
Counsel for Unified School
District No. 259
2000 Epic Center
301 North Main Street
Wichita, Kansas 67202-4820
Re: Schools--Boards of Education-Change of Method of
Election--Right to Change Voting Plan or Method of
Election; Plan of Change When District Method
Proposed; Time When Change May be Made
Synopsis: The legislature has effectively placed a moratorium
during that period running from the first Wednesday
following the first Tuesday in December of
even-numbered years to the Tuesday immediately
preceding the first Wednesday in April of
odd-numbered years on elections regarding a change
in the method of election or voting plan for
members of a board of education. Because Tuesday,
April 6, 1993, falls within that period of time
subject to the moratorium, no election regarding a
change in the method of election or voting plan for
members of a board of education may be conducted on
April 6, 1992. The provisions of K.S.A. 72-8004
are mandatory. If, in order to meet federal
requirements, proposed member districts cannot be
drawn so as to comply with the conditions set forth
in K.S.A. 72-8004, a change in the method of
election or voting plan may not be made. Cited
herein: K.S.A. 72-8001; 72-8004; 72-8005; 72-8008;
72-8009; 42 U.S.C. § 1971.

Dear Mr. Powell:
As attorney for unified school district no. 259, you request
our opinion regarding the procedure to be followed in changing
the method of electing members of a board of education.
Specifically, you ask whether the board of education for
U.S.D. No. 259 may, on April 6, 1993, submit to the electors
of the school district a question regarding whether the method
of election or voting plan should be changed. You also ask
whether the new board member districts proposed in the plan
for change in the method of election or voting plan must be
drawn so that no member district includes more than one
holdover member of the board.
A unified school district is an arm of the state existing only
as a creature of the legislature to operate as a political
subdivision of the state, and has only such power and
authority as is granted by the legislature. NEA-Wichita v.
U.S.D. No. 259, 234 Kan. 512, 517 (1983). Pursuant to K.S.A.
72-8001, "[a]ny board may change the method of election or
voting plan in its school district from that which it now or
hereafter has to any combination of method of election and
voting plan provided for by this act, unless prohibited by the
conditions provided in this act." It is clear that a board of
education may change the method of election or voting plan for
members of the board provided the conditions set forth in
K.S.A. 72-8001 et seq. are met.
A fundamental rule of statutory construction is that the
intent of the legislature governs when the intent can be
ascertained from the statute. Steele v. City of Wichita,
250 Kan. 524, 529 (1992). In construing statutes, legislative
intent is to be determined from a general consideration of the
entire act. Id. It is the duty of the court, as far as
practicable, to reconcile the different provisions to make
them consistent, harmonious and sensible. Id. Construction
that makes part of a legislative act surplusage should be
avoided if reasonably possible. State ex rel. Stephan v.
Kansas Racing Commission, 246 Kan. 708, 719 (1990).
With these rules of statutory construction in mind, we review
the provisions of K.S.A. 72-8008. K.S.A. 72-8008 provides in
part:
"Change of method of election or voting
plan or both in any school district may be
made in the manner provided in this act at
any time during the period beginning with

the first Wednesday in April of each
odd-numbered year and ending on the first
Tuesday in December of each even-numbered
year, if such change is also approved in
a manner authorized in this act before the
end of such period." (Emphasis added.)
This statute must be read in conjunction with K.S.A. 72-8001
and 72-8005. K.S.A. 72-8001 provides in part that no change
in the method of election or voting plan "shall be made unless
and until approved by a majority of the electors of the school
district voting on the question at an election. . . ."
Likewise, K.S.A. 72-8005 provides that if the change in the
method of election or voting plan is proposed through a
resolution adopted by a board of education, the resolution
"shall specify that the proposed change will be made only
after the plan of change is first approved by a majority of
the electors of the school district voting on the question at
an election. . . ." Therefore, it is clear that the
legislature intended that any change in the method of election
or voting plan be made only after approval by the electorate.
K.S.A. 72-8008 states that such approval must occur before the
end of the period designated in the statute -- that period of
time running from the first Wednesday in April of odd-numbered
years through the first Tuesday in December of even-numbered
years. The legislature has effectively placed a moratorium
during the period running from the first Wednesday following
the first Tuesday in December of even-numbered years to the
Tuesday immediately preceding the first Wednesday in April of
odd-numbered years on elections regarding a change in the
method of election or voting plan. Because Tuesday, April 6,
1993, falls within that period subject to the moratorium, no
election regarding a change in the method of election or
voting plan for members of a board of education may be
conducted on April 6, 1993.
Because you indicated that the board of education for U.S.D.
No. 259 may pursue a change in the method of election or
voting plan after April 6, 1993, we do not consider the
remaining issue you raise as moot. You raise the issue
because a number of the members of the board of education live
in close proximity to each other. You feel, therefore, that
any proposed member districts drawn so as to meet the
requirements of K.S.A. 72-8004 would result in a violation of
the voters' rights act set forth in 42 U.S.C. § 1971.

K.S.A. 72-8004 sets forth conditions that must be met by every
plan of change in which the proposed method of election is a
district method.
"(a) The proposed member districts shall
(1) each be comprised of one contiguous
compact area, (2) have equal population as
nearly as is practicable, and (3) exclude
no territory of the school district in the
proposed change, and (4) no territory
shall be included in more than one member
district.
"(b) The proposed member districts shall
be so planned that no holdover member will
be displaced by establishment, renumbering
or rearrangement of member districts by
inclusion of more holdover members in a
single proposed member district than is
authorized by this act." K.S.A. 72-8004.
(See K.S.A. 72-8009 for the number of holdover members that
may be included in a single proposed member district.)
Also, K.S.A. 72-8008 provides in part that a "[c]hange of
method of election or voting plan shall not shorten the term
of any member serving on the board at the time the change is
made, and the county election officer shall not submit to
election any plan of change which violates this prohibition."
Likewise, K.S.A. 72-8001 provides that a change in the method
of election or voting plan may be made "unless prohibited by
the conditions provided in this act." Therefore, K.S.A.
72-8004 sets forth conditions that must be met by a plan
regarding a change in the method of election or voting plan,
and the inability to meet such conditions affects the right of
a school district to make such a change. The provisions of
K.S.A. 72-8004 are mandatory. See Griffin v. Rogers, 232
Kan. 168, 174 (1982); White v. VinZant, 13 Kan.App.2d 467,
473-74 (1989). If, in order to meet federal requirements,
proposed member districts cannot be drawn so as to comply with

the conditions set forth in K.S.A. 72-8004, a change in the
method of election or voting plan may not be made.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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