Alabama Advisory Opinions March 08, 1999: AGO 1999-132 (March 8, 1999)

AGO 1999-132.

Dear Mr. Kendrick:

This opinion of the Attorney General is issued in response to your request. QUESTIONS

1. Does section 11-43-63 of the Code of Alabama permit the City of Homewood to change its city council composition and ward lines to provide by ordinance, adopted by a majority of the membership of the city council not less than six (6) months prior to the regular general municipal election, for the election of a city council consisting of not less than five (5) nor more than seven (7) single-member districts (wards)?

2. If the city is permitted to change its city council composition, pursuant to section 11-43-63, shall the president of the city council be elected from the city at large, or must the council elect a council president from its members?

Your request states, pursuant to section 11-43-40(a)(1) of the Code of Alabama, the City of Homewood currently elects its city council from five (5) wards with two (2) representatives from each ward and a president of the city council elected from the city at large. The City of Homewood desires to change the manner of electing the city council, to reduce the number of members of the council, and to provide for single-member districts.

Section 11-43-40(a)(1) of the Code of Alabama provides:

(a) In cities having a population of 12,000 or more, the following officers shall be elected at each general municipal election, who shall compose the city council for such cities . . .

(1) In cities having seven wards or less, a president of the city council and two aldermen from each ward, to be elected by the qualified voters of the several wards voting separately in every ward; except, that in such cities having a population of less than 20,000, the two aldermen from each ward shall be elected by the electors of the city at large.

Paragraph (a)(5) of this section provides:

(5) Notwithstanding the provisions of subdivisions (1), (2), (3) and (4) of this section, the governing body of any city having a population of 12,000 or more which does not now elect council members from single-member districts or cities presently operating with five single-member districts as established under a federal court order may, by ordinance or resolution, if adopted by two-thirds vote of the governing body more than six months prior to any general municipal election, provide that the city council of said city shall consist of eight aldermen to be elected from single-member districts (wards) with the president of the city council to be elected by the qualified voters of the several wards voting separately in every ward.

Section 11-43-63 of the Code of Alabama, in pertinent part, states:

Any city council of this state not currently electing its members from single-member districts pursuant to state law may, not less than six months prior to the regular general municipal election, by ordinance adopted by a majority of the membership of the council, divide the municipality into single-member districts (wards) of not less than five nor more than seven districts (wards).

Section 11-43-40(a)(5) specifically authorizes those cities operating pursuant to section 11-43-40 a method of dividing the city into eight single member districts. This section also specifically provides that the council president shall be elected from the city at large. Section 11-43-63 authorizes any city council not currently electing its members from single-member districts a method of dividing the city into single-member districts of not less than five nor more than seven districts. Since the City of Homewood is not currently electing its council members from single-member districts, the city could, pursuant to section 11-43-63, divide the city into single-member districts of not less than five nor more than seven districts.

Section 11-43-63 does not address the election of the president of the council. The president of the council is elected from the city at large pursuant to section 11-43-40, presides over the council, and is entitled to vote upon questions before the council. ALA. CODE § 11-43-40 (1989). If a city elects to create single-member districts pursuant to section 11-43-40(a)(5), the president of the council must continue to be elected from the city at large. Since section 11-43-63 does not authorize the council president to be elected from among the council members, it is the opinion of this Office that, if the city changes the composition of the city council pursuant to section 11-43-63, the council president should continue to be elected from the city at large.

Any changes made by the city to the composition and election of the council must be submitted to the United States Justice Department for preclearance pursuant to section 5 of the Voting Rights Act.

Pursuant to section 11-43-63 of the Code of Alabama, the City of Homewood may be divided into single-member districts; however, the council president must continue to be elected from the city at large. Any changes must be submitted to the Justice Department for preclearance.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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