Alabama Advisory Opinions May 10, 2002: AGO 2002-232 (May 10, 2002)

AGO 2002-232.

Dear Judge Martin:

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

If the candidate in question failed to file by the qualifying deadline of April 5, 2002, the certification of the State Superintendent of Education that the candidate holds a certificate in administration and supervision, may I place that candidate's name on the ballot for the 2002 election for Chilton County Superintendent of Education?

FACTS AND ANALYSIS

The qualifications of a county superintendent of education are set forth in section 16-9-2 of the Code of Alabama as follows:

(a) The county superintendent of education shall be chosen for his general fitness and character and shall be a person of recognized ability as a school administrator. 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.

(b) A county superintendent of education, whether elected or appointed, need not be a resident or qualified elector of the county in which he is to serve. In every county where the county superintendent of education is elected by popular vote, he shall be nominated and elected in the same manner as other county officers are nominated and elected under the state election laws.

ALA. CODE § 16-9-2 (2001) (emphasis added).

Section 16-9-4 of the Code of Alabama requires that a certification from the State Superintendent of Education must be filed with the probate judge before a person qualifies for the nomination as a candidate for the office of county superintendent of education. This section states:

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. Any resident of the county may institute an action for such recovery for any school board of the county. 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. At the grand jury of the county assembled next after making of such affidavits, the record of the same shall be submitted to the grand jury. In any prosecution for perjury under this section the record of the affidavit shall be admissible in evidence.

ALA. CODE § 16-9-4 (2001) (emphasis added).

This Office has consistently stated that this provision provides that 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. Opinions to Honorable Lamar Turner, Judge of Probate, Henry County, dated August 14, 1996, A.G. No. 96-00291; to Honorable Luke Cooley, Judge of Probate, 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.

The deadline for qualifying for the office of county superintendent of education was at 5:00 p.m. on April 5, 2002. Your request states that only two candidates (one candidate in the Republican primary and one in the Democratic primary) filed qualifying statements to run for the office. One of the candidates did not file with his qualifying statement a certification from the State Superintendent of Education that he meets the requirements required by section 16-9-2 of the Code of Alabama. On April 11, 2002, after the qualifying deadline, the office of the State Superintendent of Education faxed a letter to the Chilton County Probate Judge's Office dated April 11, 2002, certifying that the candidate in question holds the certificate in administration and supervision as required by section 16-9-2 of the Code. Given the penalty provisions of section 16-9-4 of the Code, you ask whether that candidate's name should be printed on the ballot for the general election when the candidate did not timely file the certification from the State Superintendent.

Based on the facts presented, the candidate in question did not file the certificate from the State Superintendent of Education with the probate judge before the deadline for qualifying for the nomination for the office of county superintendent of education (April 5, 2002). Accordingly, the probate judge is prohibited by section 16-9-4 from printing that candidate's name on the ballot for the general election.

Section 16-9-4 of the Code of Alabama 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 requirements, the probate judge is prohibited from placing the candidate's name on the general election ballot.

I hope this opinion answers your question. 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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