Gary H. Hanson, Counsel
Rural Water District No. 5
2887 S.W. MacVicar Avenue
Topeka, Kansas 66611
Dear Mr. Hanson:
As legal counsel for Rural Water District No. 5, Douglas County, Kansas, you request our opinion regarding whether the Rural Water District may conduct the election of its Board of Directors by mail ballot. It is the hope of the Board of Directors that conducting election of its members in this way will increase participation by those persons eligible to vote for members of the Board.
Rural Water District No. 5 (RWD No. 5) was incorporated in 1974 pursuant to K.S.A. 82a-612 et seq. Following State statute, the original members of the Board of Directors would have been elected at a meeting of owners of land within the territory of RWD No. 5.(1)
A rural water district is a creature of the Legislature, possessing only such powers as are conferred by law or as may necessarily be implied to give effect to powers specifically granted.(2) "Local government has no power by implication. It acquires no powers except those expressly granted and those necessary to make the express powers effective."(3) Any reasonable doubt as to the existence of power should be resolved against its existence.(4)
"The term of office of every member elected to an original board [of directors of a rural water district] shall be until the date of the annual meeting of the participating members of either the first, second or third year following the year of the incorporation of the district and until their successors are elected and have qualified, and as nearly as possible the terms of an equal number of directors on any such board shall expire on each of said dates. At the annual meeting of each year after the year of the election of the original board members, elections shall be held to elect directors to fill any position on the board, the term of office of which has expired, and any director so elected shall hold office for a term of three years and until such director's successor is elected and has qualified. For the purpose of election of board members and for such other purposes as the bylaws may prescribe, annual meetings of participating members shall be held by each district between January 1 and April 1 of each year following the year of incorporation of such district. . . ."(5)
The Legislature has prescribed the procedure to be used in electing members to a board of directors of a rural water district. A board of directors does not possess the authority to alter the procedure. Therefore, members of a board of directors may be elected only at an annual meeting of landowners held upon a date between January 1 and April 1 of each year. The statutes do not authorize use of a mail ballot election.
CJS:JLM:RDS:jm
1. K.S.A. 82a-615; 82a-617.
2. See Wiggins v. Housing Authority of Kansas City, 22 Kan.App.2d 367, 369 (1996).
3. Madden v. City of Lenexa, 239 Kan. 397, 400 (1986).
4. Hobart v. Board of Education, U.S.D. No. 309, 230 Kan. 375, 383 (1981).
5. K.S.A. 82a-626 (emphasis added).