Alabama Advisory Opinions August 14, 1996: AGO 1996-291 (August 14, 1996)

AGO 1996-291.

Dear Judge Turner:

This opinion is issued in response to your request for an opinion from the Attorney General.

1. Has the candidate met all of the necessary qualifications under Alabama law for the office of county superintendent of education in order for her name to be placed on the ballot for the general election in November?

2. Would the receipt in the future by my office of any such certificate signed by the state superintendent of education pertaining to the candidate's qualifications entitle her to placement of her name on the ballot for the general election in November?

The qualifications of a county superintendent are set forth in Code of Alabama 1975, _ 16-9-2, as follows:

"(a) . . . No person shall be eligible for appointment by any county board of education or for any political party nomination, or for election to the office of county superintendent of education unless such person:

"(1) Holds an Alabama certificate in administration and supervision based upon requirements established by the State Board of Education for such certificate ;

"(2) Has had not less than five years of experience in public school work at the time he assumes office;

"(3) Submits proof to the State Superintendent of Education of three years of successful educational experience as a teacher, principal, supervisor, superintendent, educational administrator or instructor in school administration during the five years next preceding his appointment or election;

"(4) Submits proof to the county board of education that he holds a degree from a recognized four-year college or university; and

"(5) If such person is to be appointed by the county board of education, submits proof to the county board that he is knowledgeable in school administration."

(Emphasis added.)

Code of Alabama 1975, _ 16-9-4 provides:

"Any person securing his name, or the name of another printed on a ballot as a candidate for, or nomination by a political party as a candidate for the office of county superintendent of education, without first there having been filed with the probate judge , as required by law, the certificate signed by the State Superintendent of Education that the person whose name is printed on the ballot holds a certificate of administration and supervision , and any officer permitting the printing on a ballot of the name of a person as a candidate for, or nomination by a political party as a candidate for the office of county superintendent of education when there has not been filed with the probate judge such certificate shall be subject to a penalty of $250.00 , recoverable in the name of the state for the use of any school board first instituting an action therefor. . . . Before any person shall become an applicant for employment by a county board of education, as county superintendent of education, and before any person shall qualify as a candidate for or for the nomination of a political party as a candidate for the office of county superintendent of education for a county in which such officer is elected by the qualified voters of the county , such person shall file with the probate judge a certificate signed by the State Superintendent of Education that such person holds a certificate of administration and supervision as required by the law prescribing the qualifications of a county superintendent of education. . . ." (Emphasis added.)

This office has previously held that this provision provides that a prerequisite or a condition precedent to qualifying as a candidate for nomination of a political party for the office of county superintendent of education is that the required certificate of administration and supervision be filed with the probate judge within the time fixed for qualifying as a candidate for nomination of a political party. Opinion to Honorable Luke Cooley, Probate Judge, Houston County, dated May 14, 1996, A.G. No. 96-00213; and to Honorable A. H. Collins, State Superintendent of Education, dated April 7, 1938.

Your questions specifically concern the duty of the probate judge to place a candidate's name on the ballot pursuant to Code of Alabama 1975, _ 16-9-4. The following facts are presented in your request:

The candidate in question filed with my office on March 21, 1996, her Declaration of Candidacy for the office of Henry County Superintendent of Education under the Alabama Republican Party.

On April 9, 1996, my office received a statement from the Chairman of the Henry County Republican Party indicating that certain individuals, including this candidate, had been certified by the Henry County Republican Party as candidates for the general election in November, and further indicating that due to lack of opposition the candidates names would not appear on the primary ballot. Thereafter, on May 3, 1996, the candidate delivered to my office a copy of a letter to her from the Alabama Education Association's General Counsel indicating that in his opinion the certain requirement of Code of Alabama 1975, _ 16-9-2(a) prohibiting political party nomination unless certain qualifications are met is unconstitutional.

On July 30, 1996, the candidate delivered to my office a letter from a certification officer with Troy State University Dothan, which verified that she had completed all requirements for the 27 hour Class A (master's level) endorsement in Educational Leadership. The certification officer went on to relate that the candidate's certification application had been received and would be forwarded to the Alabama State Department of Education for processing.

On July 31, 1996, my office received correspondence from the Chairman of the Henry County Republican Party notifying me that the Party will hold a meeting on August 8, 1996, to address the candidate for the position of Superintendent of Education. This letter further advised that verification of the Republican candidate would be forthcoming after such August 8, 1996, meeting.

On August 2, 1996, my office received a copy of an Education Experience Verification Form concerning the candidate signed by the current superintendent of education in Henry County.

It would appear that the candidate did not file a certificate signed by the State Superintendent of Education that she holds a certificate in administration and supervision with you, the probate judge, before the qualifying deadline for the primary election, which was April 5, 1996. Furthermore, it appears that she did not file this certificate because at that time she did not hold a certificate in administration and supervision. Code of Alabama 1975, _ 16-9-4, requires that a certificate be filed with the probate judge before the qualifying deadline and subjects the probate judge to a misdemeanor penalty if he prints a person's name on the ballot who has not filed such a certificate.

In an opinion to Honorable Mac Thomas, Probate Judge, Coosa County, dated March 5, 1964, Quarterly Reports of the Attorney General, Vol. 114, p. 88, this office opined that the required certificate may be filed with the probate judge at any time before the ballots are printed for the primary election. That opinion relied upon an Alabama Supreme Court decision, Stacy, Probate Judge v. Brown , 253 Ala. 699, 46 So. 2d 857 (1950), which affirmed, without opinion, a circuit court decision. The facts of the circuit court decision were not accurately cited in the Thomas opinion and the incorrect facts were the basis for the opinion. Therefore, we hereby overrule the opinion to Mac Thomas.

In the Thomas opinion the candidate had filed the required certificate but it was filed after the qualifying deadline and before the probate judge was required to have the ballots printed for the primary election. In the Stacy case the candidate filed his qualifying papers with the Democratic Party on February 18, 1950, and filed his certificate of administration and supervision with the probate judge on February 25, 1950. The qualifying deadline was March 1, 1950; thus, the candidate had filed his certificate with the probate judge before the qualifying deadline. The issue was whether he should have filed his certificate on the same date he filed the qualifying papers with the party and whether he used the proper forms to obtain his certificate from the state. In the present situation, the candidate never filed the required certificate, apparently because she did not possess a certificate in administration and supervision. The question of printing her name on the ballot for the primary election never arose because she did not have opposition for the primary election and a ballot was not required to be printed for the primary election. If she had had opposition for the primary, the probate judge would not have been required to place her name on the ballot and she could not be the party's nominee. The fact that she did not have opposition in the primary does not excuse the candidate from filing the proper certificate with the probate judge.

The candidate now seeks to have her name placed on the ballot for the November general election as the party's nominee. Only legally qualified candidates shall become the nominee of the party. Code of Alabama 1975, _ 17-16-11(c). Code of Alabama 1975, _ 17-7-1, provides that all candidates who have been put in nomination for county office by primary election must be certified to the probate judge six days after the primary election in order to have their names printed on the general election ballot. The deadline of six days after the primary election fell on July 1, 1996. As of that date the candidate had not filed the required certificate. Code of Alabama 1975, _ 16-9-4, specifically states that before a person can qualify for the nomination of a political party as a candidate for county superintendent of education, the person must file the certificate of administration and supervision with the probate judge.

This office does not make findings of fact but if the probate judge determines that the candidate did not meet the statutory qualifications for the office of county superintendent of education as set forth above, the probate judge is prohibited from printing the candidate's name on the November general election ballot.

Code of Alabama 1975, _ 16-9-4, requires a candidate for county superintendent of education to file with the probate judge before the qualifying deadline a certificate signed by the State Superintendent of Education that the candidate holds a certificate in administration and supervision. If the probate judge determines that the candidate did not meet the statutory qualifications for office, the probate judge is prohibited from placing the candidate's name on the November general election ballot.

The opinion to Honorable Mac Thomas, Probate Judge, Coosa County, dated March 5, 1964, Quarterly Reports of the Attorney General, Vol. 114, p. 88, is hereby overruled.

Can the Republican Party fill a vacancy in the nomination pursuant to Code of Alabama 1975, _ 17-16-41, by placing the candidate's name in nomination after she obtains a certificate in administration and supervision?

During the process of drafting this opinion this third question was submitted to us after your office received further information. We have been informed that on August 7, 1996, the candidate received from the State Superintendent of Education a certificate in administration and supervision and on August 9, 1996, the certificate was filed with the probate judge, along with a letter from the Republican Party declaring the candidate as the party's nominee. The Republican Party has informed the probate judge that the candidate's name was submitted on August 9 in order to fill a vacancy in the nomination.

Vacancies in nominations may be filled pursuant to Code of Alabama 1975, _ 17-16-41, which states:

"The state executive committee, in cases where the office to be filled is not a county office, and the county executive committee, in cases where the office to be filled is a county office, but subject to the approval of and in accordance with the method prescribed by the state executive committee, where a vacancy may occur in any nomination, either by death, resignation, revocation or otherwise, or in case of any special election, shall have the power and authority to fill such vacancy, either by action of the committee itself or by such other method as such committee may see fit to pursue."

The Alabama Supreme Court has held that a political party may remove its candidate due to the candidate's failure to timely file a statement naming his principal campaign committee, thus creating a vacancy in its nomination which the party could fill. Megginson v. Turner , 565 So. 2d 247 (Ala. 1990). Applying this rationale to the present facts, the Republican Party could remove the candidate for her failure to file the required certificate of administration and supervision, thus creating a vacancy in the nomination. Since the candidate has now received a certificate and has filed it with the probate judge, the party may fill the vacancy by naming her as the nominee.

Pursuant to Code of Alabama 1975, _ 17-16-41, the Republican Party may fill a vacancy in its nomination.

We note that Attorney General's opinions are advisory only.

I hope this sufficiently answers your questions. If our office can be of further assistance, please contact us.

Sincerely,

JEFF SESSIONS

Attorney General

By: RICHARD F. ALLEN

Chief Deputy Attorney General

JS/RFA

T/8.96/f