Alabama Advisory Opinions May 14, 1996: AGO 1996-213 (May 14, 1996)

AGO 1996-213.

Dear Judge Cooley:

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

Are the two candidates who have qualified with their respective parties for the office of county superintendent of education qualified for placement of their name on the ballot?

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."

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, as then codified in the School Code of 1927, 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 A. H. Collins, State Superintendent of Education, dated April 7, 1938.

We note that a 1931 local act applicable to Houston County also provides qualifications for the county superintendent of education. Act No. 66, 1931 Local Acts, page 16, provides:

"No person shall be eligible for part nomination, or for election to the office of County Superintendent of Education of Houston County who does not hold an Alabama Certificate in Administration and Supervision based as a minimum upon graduation from a standard normal school or equivalent education, with at least one year of additional study of college grade, and proof of three years of successful teaching experience, and such other additional qualifications as may be provided by the general school laws of the State. . . . No person shall be eligible to qualify, be elected, or appointed to the office of County Superintendent of Education of Houston County, who is not a qualified elector of the State of Alabama, and who does not procure a certificate from the Superintendent of Education of Alabama that he possesses the qualifications prescribed by this section. This certificate shall be filed with the Probate Judge of Houston

County before his name shall be printed upon the official ballot or before he shall be eligible for the appointment by the County Board of Education."

It should be noted that since this local act was passed the provisions of _ 16-9-2 have been amended several times, and the qualifications of a county superintendent have been modified. The latest amendment to _ 16-9-2 was Act No. 38, Acts 1969, Ex. Sess., p.95, which provides in Section 2 that any special or local laws in conflict with it are repealed. The qualifications under the local act are less restrictive than the qualifications under the current general state law and are, therefore, in conflict. Thus, the qualifications provided under the local act are repealed by the 1969 amendment to _ 16-9-2. Accordingly, the qualifications applicable to the Houston County Superintendent of Education are those set forth in _ 16-9-2.

Your question specifically concerns the duty of the probate judge to place a candidate's name on the ballot pursuant to Code of Alabama 1975, _ 16-9-4. As stated above, the candidate must file with the probate judge before the qualifying deadline a certificate signed by the State Superintendent of Education that the person holds a certificate of administration and supervision.

With respect to the challenger, your request states that he submitted a copy of his certificate of administration and supervision signed by the State Superintendent of Education. You state that he was under the belief that he then had five days from the qualifying deadline to obtain a letter certifying his professional qualifications from the State Superintendent of Education. Pursuant to _ 16-9-4, the candidate was required to file with the probate judge by the qualifying deadline a certificate signed by the State Superintendent certifying that the candidate holds a certificate of administration and supervision. There is no provision that allows the candidate five days from the qualifying deadline to obtain this certification. In this case it appears that the challenger filed a copy of his certificate, but not a letter signed by the State Superintendent certifying that he holds such a certificate. Given that the challenger filed a copy of his certificate of administration and supervision, it is our opinion that the challenger should be placed on the ballot.

With respect to the incumbent, you state that she did not submit any documentation to you because of a memo she received from the State Superintendent of Education. This memo stated that incumbents are not required to re-file the certificate of administration and supervision with the probate judge because they had previously filed this in the prior election. You further state that the incumbent has a certificate on file in the probate judge's office that was filed and recorded in 1992 for purposes of the 1992 election. We note that the law does not provide that an incumbent candidate is excused from filing this certificate if the candidate has previously filed the certificate in a prior election, nor does it specifically cover the situation, as here, where a certificate is on record from a prior campaign. However, given the circumstances and the confusion surrounding whether incumbents were required to re-file the certificate, it is our opinion that due process demands that the probate judge place the incumbent candidate's name on the ballot in this case.

In the future, to avoid any question of compliance with the law, this office will recommend to the State Superintendent of Education that he notify all incumbents who might become candidates that all candidates, including the incumbent, should file a certificate signed by the State Superintendent of Education with the probate judge before the qualifying deadline certifying that the candidate holds a certificate of administration and supervision. Doing so would eliminate all questions concerning this issue.

If someone wishes to challenge a candidate's right to be placed on the ballot they may seek a determination from a court of competent jurisdiction. We would also point out that in order to challenge the other qualifications of a candidate, a pre-primary challenge may be filed with the candidate's political party or a contest may be filed after the primary election challenging the qualifications to hold the office. See opinion to Honorable Mike Bolin, Probate Judge, Jefferson County, dated April 12, 1996, A.G. No. 96-00183.

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. Under the circumstances in this case, the probate judge should place the incumbent and the challenger on the ballot for the 1996 primary election.

I hope this sufficiently answers your question. If our office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

JEFF SESSIONS

Attorney General

By: JAMES R. SOLOMON, JR.

Chief, Opinions Division

JS/BFS

C/5.96/f