AZ I22-002 (R21-007) 2022-06-17

When a sanitary district board has too few members to function and nobody wants the open seat, what must the county board of supervisors do?

Short answer: Keep trying. The AG concluded that A.R.S. § 48-2010(F)'s requirement that the county board of supervisors 'shall' fill the vacancy is mandatory, but if no qualified elector is willing to serve, the board must make good-faith efforts to find one rather than violate the statute through no fault of its own.

Disclaimer: This is an official Arizona Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Arizona attorney for advice on your specific situation.

Plain-English summary

A sanitary district is a special taxing district that handles sewage treatment and similar services. Sanitary districts of 160 acres or more are governed by an elected board of directors of qualified electors of the district (A.R.S. § 48-2010(A)). When the board lacks a quorum, the county board of supervisors steps in: A.R.S. § 48-2010(F) says it "shall make the appointment to fill the vacancy."

Cochise County faced a stickier version of this problem. The sanitary district board did lack a quorum, but no qualified elector of the district wanted the seat. Did the county board of supervisors have to keep searching forever, or was the statute satisfied if no one could be found?

The AG concluded that "shall" in § 48-2010(F) is mandatory, but the obligation is not absolute. Reading the statute to demand the impossible (a violation through no fault of the county) would be absurd. Instead, the county board of supervisors must make "good-faith efforts to identify a qualified and willing elector until the vacancy is filled." Whether any specific set of efforts qualifies as good faith is a factual question outside the opinion's scope.

What this means for you

If you serve on a county board of supervisors

When you receive notice that a sanitary district board has lost its quorum, treat the appointment requirement under § 48-2010(F) as mandatory. You should:

Open a public recruitment process, document it, and demonstrate you reached out to qualified electors of the district.
If no one accepts on the first round, expand outreach (notice in district newsletters, posting in district facilities, direct contact with civic groups in the district) and document each round.
Repeat until the seat is filled. Do not declare the vacancy unfilled-able and walk away; that is what the AG says you cannot do.
Keep contemporaneous records. If anyone challenges the county for failing the statutory duty, the records are your good-faith defense.

If you are a sanitary district attorney or administrator

When the district loses its quorum, notify the county board of supervisors promptly and in writing. Help with recruitment by giving the county current voter rolls for the district, lists of property owners who reside in the district, and access to district communication channels.

If you are a qualified elector in a sanitary district that has lost its quorum

If you are willing to serve, offer yourself to the county board of supervisors directly. The legislative interest the opinion identifies is filling the vacancy quickly so the district can function. Without a quorum the board cannot adopt budgets, set rates, hire staff, or take other action. Your willingness to serve resolves a real operational problem.

If you are a county attorney advising the board

The opinion is the citation you need when the board asks "what if no one will take the job." The combined holding is: the duty is mandatory, the standard is good faith, and the factual question of whether efforts have been good-faith enough is for the board to develop and document.

Common questions

Q: What is a sanitary district?
A: A special taxing district organized under A.R.S. §§ 48-2001 et seq. for sewage and related public services. Sanitary districts of 160 acres or more are governed by an elected board of district electors; smaller districts may be governed directly by the county board of supervisors (A.R.S. § 48-2010(C)).

Q: Why does the county board of supervisors get involved?
A: Because § 48-2010(F) directs the board to fill a vacancy "if the remaining directors do not constitute a quorum." Ordinarily the sanitary district board fills its own vacancies; the county only steps in when the district board cannot function.

Q: Could the county just leave the seat open?
A: The AG says no. The legislature's interest is in filling vacancies and avoiding governmental paralysis. Leaving the seat open conflicts with the mandatory "shall."

Q: How does this compare to other special-district vacancy laws?
A: A.R.S. § 48-1404(D) is the parallel provision for special road districts: "If the members of the board of trustees do not constitute a quorum, the county board of supervisors shall make the appointment to fill the vacancy." The AG cites this as evidence that the legislature designed an explicit secondary path when district boards cannot fill their own vacancies.

Q: What are "good-faith efforts"?
A: The opinion does not define them in the abstract. Footnote 2 expressly says the question of good faith in any specific case is factual and outside the opinion's scope. In practice, good-faith efforts mean documented, repeated, and reasonable outreach calibrated to the size and circumstances of the district.

Q: Does this apply to other Arizona special districts?
A: The opinion is about A.R.S. § 48-2010(F) specifically. The reasoning, that "shall" is mandatory but cannot be read to demand an impossibility, is a general interpretive principle that would likely transfer to similar special-district vacancy provisions, including § 48-1404(D). Don't read the opinion as deciding those cases, though.

Background and statutory framework

A.R.S. § 48-2010 governs sanitary district boards of directors. For districts of 160 acres or more, the board has at least three members, all qualified electors of the district. The district's own board fills vacancies: except when the remaining directors do not constitute a quorum, in which case § 48-2010(F) shifts the appointment duty to the county board of supervisors.

The legal question is whether "shall" in § 48-2010(F) is mandatory or directory. Arizona courts treat "shall" as usually mandatory (State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127 (2020); Ins. Co. of N. Am. v. Superior Ct., 166 Ariz. 82 (1990)), but acknowledge it can be construed as directory when context and legislative purpose require (HCZ Constr., 199 Ariz. 361). The AG concluded that the legislature's clear intent, fill vacancies, avoid quorum failures, supports a mandatory reading. Quorum requirements matter: in Croaff v. Evans, 130 Ariz. 353 (App. 1981), the Arizona Court of Appeals held that a quorum of a board of supervisors was necessary under a zoning statute's public-hearing provision.

The "good-faith efforts" gloss comes from the canon against absurd results. France v. Indus. Comm'n of Ariz., 250 Ariz. 487 (2021), confirms that courts "avoid construing a statute in a manner that leads to an absurd result." Reading the statute to impose strict liability when no qualified elector will serve would be absurd, so the AG read in a duty of continued good-faith effort.

Citations and references

Statutes:
- A.R.S. §§ 48-2001 et seq., sanitary districts
- A.R.S. § 48-2010(A), (C), (F), sanitary district board, small-district governance, vacancy filling
- A.R.S. § 48-1404(D): parallel special-road-district provision

Cases:
- State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127 (2020)
- Ins. Co. of N. Am. v. Superior Ct., 166 Ariz. 82 (1990)
- Ariz. Downs v. Ariz. Horsemen's Found., 130 Ariz. 550 (1981)
- HCZ Constr., Inc. v. First Franklin Fin. Corp., 199 Ariz. 361 (App. 2001)
- Verma v. Stuhr, 223 Ariz. 144 (App. 2009)
- Croaff v. Evans, 130 Ariz. 353 (App. 1981)
- France v. Indus. Comm'n of Ariz., 250 Ariz. 487 (2021)
- Bd. of Trustees of Salt Lick Graded Common Sch. Dist. v. Kercheval, 45 S.W. 2d 846 (Ky. Ct. App. 1931)

Source

Landing page: https://www.azag.gov/opinions/i22-002-r21-007
Original PDF: https://www.azag.gov/sites/default/files/2025-06/I22-002.pdf

Original opinion text

To:

Brian M. McIntyre

Cochise County Attorney

Question Presented

What is required of a county board of supervisors under A.R.S. § 48-2010(F) when a sanitary district board of directors lacks a quorum and no qualified electors of the sanitary district are willing to be appointed?

Summary Answer

If a sanitary district board of directors lawfully lacks a quorum, A.R.S. § 48-2010(F) requires the county board of supervisors to make an appointment to fill the vacancy on the sanitary district board. If the county board of supervisors is initially unable to identify a qualified elector who is willing to accept the appointment, the county board of supervisors must make good-faith efforts to identify a qualified and willing elector until the vacancy is filled.

Background

A sanitary district is a special taxing district organized under Title 48, Chapter 14 of the Arizona Revised Statutes (§ 48-2001, et seq.). When a sanitary district has "an area of one hundred sixty acres or more," the district "shall be governed by a board of directors with not less than three members."[1] A.R.S. § 48-2010(A). "Members of the board of directors shall be qualified electors of the district." Id. If a vacancy occurs on a sanitary district's board of directors,

the board of directors of the sanitary district shall appoint a qualified elector of the district to fill the office for the remaining portion of that term, except that if the remaining directors do not constitute a quorum, the county board of supervisors shall make the appointment to fill the vacancy.

A.R.S. § 48-2010(F) (emphasis added).

In this case, the Cochise County Attorney has asked what is required to satisfy A.R.S. § 48-2010(F) when a sanitary district's board of directors lacks a quorum and the county board of supervisors is unable to identify any qualified elector who is willing to be appointed to the sanitary district's board of directors.

Analysis

Under A.R.S. § 48-2010(F), when a sanitary district board of directors lacks a quorum, "the county board of supervisors shall make the appointment to fill the vacancy." (emphasis added). "The term 'shall' is usually mandatory." State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 132 ¶ 19 (2020); see also Ins. Co. of N. Am. v. Superior Ct. In & For Cnty. of Santa Cruz, 166 Ariz. 82, 85 (1990) ("The use of the word 'shall' indicates a mandatory intent by the legislature."). However, "the word 'shall' . . . has also been construed to indicate desirability, preference, or permission." Ariz. Downs v. Ariz. Horsemen's Found., 130 Ariz. 550, 554 (1981); see also HCZ Constr., Inc. v. First Franklin Fin. Corp., 199 Ariz. 361, 364 (App. 2001) (the term "shall" "may be deemed directory when the legislative purpose can best be carried out by such construction."). "Mandatory terms may be interpreted as directory depending on context and usage, and depending on whether the legislative intent is best served by that construction." Verma v. Stuhr, 223 Ariz. 144, 153 ¶ 35 (App. 2009).

The context and legislative purpose of A.R.S. § 48-2010(F) suggest that the term "shall" here should be read as mandatory. See Bd. of Trustees of Salt Lick Graded Common Sch. Dist. v. Kercheval, 45 S.W. 2d 846, 847 (Ky. Ct. App. 1931) ("The law abhors vacancies in offices, and the presumption is against a legislative intent to create or to allow a condition which may result in an executive or administrative office remaining unoccupied."). Without a quorum, governmental entities are often powerless to conduct business and make decisions. See, e.g., Croaff v. Evans, 130 Ariz. 353, 356 (App. 1981) (holding that a quorum of a board of supervisors was necessary under a zoning statute's public hearing provision). Thus, because of the importance of obtaining a quorum, the legislature provided not only a method for the existing board of directors to fill vacancies, but also a secondary method when an existing board lacks a quorum. Cf. A.R.S. § 48-1404(D) ("If the members of the board of trustees [for a special road district] do not constitute a quorum, the county board of supervisors shall make the appointment to fill the vacancy."). Therefore, if a sanitary district board lacks a quorum, A.R.S. § 48-2010(F) mandates that the county board of supervisors make an appointment to fill the vacancy.

The statute, however, does not expressly address what happens when a county board of supervisors is unable to fill a vacancy because no qualified elector is willing to accept the appointment. But reading the statute to require the board of supervisors to fill a vacancy when doing so is impossible because, despite good-faith efforts to recruit a replacement, no qualified elector is willing to accept the appointment would create an absurd result—a statutory violation by the board of supervisors through no fault of its own. See France v. Indus. Comm'n of Ariz., 250 Ariz. 487, 490 ¶ 13 (2021) (courts "avoid construing a statute in a manner that leads to an absurd result."). On the other hand, reading the statute to require the county to continue good-faith efforts to fill a vacancy until an appointment is made avoids any absurd result, is otherwise a reasonable interpretation of the statutes' mandate, and furthers the Legislature's interest in filling vacancies. The county board of supervisors should, therefore, continue good-faith efforts to identify and appoint a qualified and willing elector, even if previous attempts to do so were unsuccessful.[2]

Conclusion

Mark Brnovich

Attorney General

[1] Sanitary districts encompassing a smaller area may be governed by the board of supervisors of the county where the district is located. See A.R.S. § 48-2010(C) (discussing sanitary districts with "an area of less than one hundred sixty acres").

[2] What constitutes "good-faith efforts" in any individual circumstance is a factual question beyond the scope of this opinion. This opinion, therefore, should not be read as taking a position on whether, as a factual matter, the Cochise County Board of Supervisors has or has not acted in good faith in attempting to fill any particular vacancy on a sanitary district board. Further, this opinion should not be read to take a position on anything beyond the narrow question asked.