Alabama Advisory Opinions October 09, 2003: AGO 2004-005 (October 9, 2003)

AGO 2004-005.

Dear Mayor Cochran:

This opinion of the Attorney General is issued in response to your request on behalf of the City of Warrior.

Is a council member deemed to have vacated his seat on the council when he moved into his wife's home outside the district and put his house located in the district on the market?

The following facts have been presented to this Office:

In July 2003, Councilman Keeton married and moved from his home in the district to his wife's home outside of the district. Mr. Keeton placed his home within the district on the market and currently has a contract for the sale of the home. He is currently looking for a suitable home within the district to purchase, or in the alternative, land within the district upon which to build a suitable home. Mr. Keeton has stated that he could not purchase another home in his district until he sold his current home in the district and that it is his intention to return to a home in his district.

A council member must be a resident of the city and district in which he has been elected.

Ala. Code § 36-9-1 (1991). Whether a council member legally resides or is a resident of a municipality or a district of the municipality is a question of fact to be determined by the city council based on all the surrounding circumstances of each individual case. Opinions to Honorable Booker T. Forte Jr., Attorney, Town of Boligee, dated April 17, 2001, A.G. No. 2001-152; to Honorable Steve Clouse, Member, House of Representatives, dated January 9, 1996, A.G. No. 96-00088; and to Honorable Ray Janney, Mayor, City of Bridgeport, dated February 20, 1991, A.G. No. 91-00176; see Ala. Code § 11-43-58 (1989) (council judges the qualifications of council members). The Alabama Supreme Court has held that the terms "legally resides" and "resident" are synonymous with domicile. Osborn v. O'Barr , 401 So. 2d 773 (Ala. 1981). "Domicile" is defined as "residence at a particular place accompanied by an intention to remain there permanently, or for an indefinite length of time." Mitchell v. Kinney , 242 Ala. 196, 203, 5 So. 2d 788, 793 (1942). With respect to the residency of a voter, the Alabama Supreme Court has stated the following:

A voter having acquired a legal residence, been duly registered as a voter of the county and precinct or ward . . . may retain such residence until he has abandoned and removed therefrom with the intent to become a resident elsewhere. Temporary absence from one's residence for the purposes of his employment and the like, without the intent to abandon the home town and acquire a domicile elsewhere permanently, or for an indefinite time, does not forfeit his right to vote.

In a previous opinion concerning a member of a county board of education, this Office analyzed a similar fact situation. Opinion to Honorable Raymond E. Ward, Attorney, Tuscaloosa County Board of Education, dated March 20, 2000, A.G. No. 2000-109. In that opinion, the board member sold his residence inside the district in anticipation of building a home on land he believed was also inside the district. He later learned that the land where he anticipated building a home, as well as the home he was currently living in, was not in the district. This Office stated, based upon the particular facts involved, that the board member had not abandoned his residence in the district with the intent to become a resident elsewhere; thus, he was still a resident of the district, even though he currently lived in a home outside the district.

Although the city council has the authority to make a determination of residency of a council member, it is the opinion of this Office, based upon the facts presented, that the council could find that council member Keeton has not abandoned his residence in the district. In addition to the council's authority to make a determination of residency of a council member, a quo warranto action may be filed in the circuit court of the county in which the public official is located to determine whether the person is unlawfully holding or exercising the public office.

Ala. Code § 6-6-591 (1993).

Whether a council member is a resident of the city is a factual question to be determined by the city council based upon the particular facts and circumstances. A council member does not vacate his residency by a temporary absence unless he has intent to abandon the residency and establish a permanent residence elsewhere.

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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