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Tony R. Burns, District Attorney, Stephens County
The Attorney General has received your request for an opinion wherein you ask, in effect, the following questions: (1) May a county with a dependent school district abolish the office of County Superintendent of Schools if the office has been vacant for a period of one (1) year or more? (2) What procedure is to be followed to formalize abolition of the office of County School Superintendent?
Title 70 O.S. 4-101 [70-4-101] (1978) provides, in part, as follows: "B. The office of county superintendent of schools in and for each county in Oklahoma having no dependent school districts in the county is hereby abolished except in counties having a population greater than three hundred thousand (300,000); provided, those persons presently serving as county superintendents of schools shall continue to serve as such until the expiration of their terms of office to which they were elected.
C. The clerical and purely administrative functions and duties of the office of county superintendent of schools in such counties having no dependent school districts are hereby transferred to and shall be performed by a clerk to be known as the county school district clerk, to be appointed by the county commissioners of the county. Said clerk shall be paid from county funds a salary equal to the salary paid to the first deputy county clerk of the county.
All records of the former county superintendent of schools shall be maintained and preserved by said clerk in office space which shall be made available for his use by the county commissioners.
Provided, when an office of county superintendent of schools has been vacated for a period of one (1) year, said office shall be abolished and the county school district clerk shall assume the duties of said office." (Emphasis added) In addition to establishing qualifications for candidates, providing the term of office, abolishing said office in counties having no dependent school districts, and requiring transfer of duties, 70 O.S. 4-101 [70-4-101], as amended, and as it must be interpreted, directs that the office of County Superintendent of Schools in counties, having a dependent school district "shall" be abolished if the office has been vacant for one (1) year.
The use of the word "shall" is usually given its common meaning of "must" and is interpreted as implying a command or mandate. Barnes v. Transok Pipeline, Okl., 549 P.2d 819 (1976). Furthermore, where the performance of a statutory requirement is mandatory there can be no compliance except in accordance with the particular provision. Oldham v. Drummond Board of Education, Okl. 542 P.2d 1303 (1975).
The word "shall" as used in 70 O.S. 4-101 [70-4-101] given a meaning other than "must" would render that part of the statute useless. Therefore, abolition of the office of County Superintendent of Schools when the office has been vacant for one (1) year or more is mandatory as provided by 70 O.S. 4-101 [70-4-101] (1978).
Your attention is also directed to 70 O.S. 4-112 [70-4-112] (1978) which provides: "If the office of County Superintendent in any county is vacated by reason of death, resignation, or any other cause and the County Commissioners fail for any reason to appoint a person to fill said vacancy, then the Deputy County Superintendent shall become and serve in the capacity of School Clerk and shall receive compensation according to law." 70 O.S. 4-112 [70-4-112] contemplates a vacancy in the office of County Superintendent of Schools which, if not filled by the County Commissioner, directs the Deputy County Superintendent to serve as School Clerk.
This authorization is consistent with 70 O.S. 4-101 [70-4-101] which, in addition to directing abolition due to vacancy, directs the County Commissioners to appoint a County School District Clerk who is to perform the clerical and administrative functions and duties of the abolished elective office. In your second question you inquire of the procedure to be followed to formalize the abolition of the office of County Superintendent of Schools when said office has been vacant for one (1) year or more.
The board of County Commissioners is the authority empowered to fill such vacancy and is likewise responsible for making the determination of vacancy. 51 O.S. 8 [51-8] (1971); 70 O.S. 4-112 [70-4-112] (1978). Thus, a board of County Commissioners is authorized to make such finding of vacancy and shall formalize their findings by order or resolution.
It is, therefore, the opinion of the Attorney General that your questions be answered as follows: 70 O.S. 4-101 [70-4-101] (1978) requires abolishing the office of County Superintendent of Schools in counties having a dependent school district when a vacancy therein has existed for one (1) year or more and, the Board of County Commissioners is the proper authority to make such determination of vacancy and upon such finding shall, by order or resolution, abolish the office of county Superintendent of Schools.
(MICHAEL JACKSON) (ksg) ** OVERRULED BY OPINION NO. 88-054 (1988) **