Alabama Advisory Opinions December 21, 1999: AGO 2000-049 (December 21, 1999)

AGO 2000-049.

Dear Mr. Whitehead:

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

QUESTIONS 1 and 2

What effect, if any, did the amendment proposed by Act No. 99-408 and approved by the voters on October 12, 1999, have on the referendum that was held in November 1998 pursuant to Act No. 98-284?

Does the amendment proposed by Act No. 99-408 validate Act No. 98-306?

A constitutional amendment proposed by Act No. 99-408 was approved by the voters on October 12, 1999, and proclaimed ratified by the Governor on November 22, 1999. The amendment will be codified as Amendment No. 659. The 1999 amendment allows the Legislature, by local law, to authorize any municipality with a city board of education to conduct a referendum election to change from an appointed city board of education to an elected city board of education. If the electors vote in favor of an elected city board of education, the amendment also allows the Legislature, by local law, to provide for the election. Another provision of the 1999 amendment most pertinent to your questions states as follows:

Any general law, municipal classification law, or local law providing for or authorizing an elected city board of education in any municipality enacted within the last 1,095 days prior to the ratification date of this amendment is validated and confirmed. Any local referendum conducted pursuant to such general law, municipal classification law, or local law, or any combination of such laws, in which a majority of the qualified electors of the municipality voting voted in favor of an elected city board of education, is also validated and confirmed and that local referendum is considered as an authorizing referendum election for purposes of this amendment.

Act No. 98-284 proposed an amendment to the Constitution of Alabama to provide that the Legislature, by local act, may provide for the manner of selection of the members of the Board of Education of the City of Anniston in Calhoun County. 1998 Ala. Acts No. 98-284, 462. The Act provided for a referendum election to be held in accordance with Amendment No. 555 of the Alabama Constitution. A referendum election was held in November of 1998 on a countywide basis in Calhoun County, but a separate election was not held in the City of Anniston as required pursuant to Amendment No. 555. Consequently, the election officials were not able to certify that the amendment received a favorable vote from a majority of the electors in the City of Anniston. The proposed amendment did receive a favorable vote from a majority of the voters in Calhoun County. Pursuant to an opinion from this Office discussing these issues, Governor Fob James did not proclaim the amendment passed. See Opinion to Honorable Fob James, Jr., Governor, dated January 5, 1999, A.G. No. 99-00068. Act No. 98-306, providing for the manner of selection, qualifications, terms of office, etc., was to become effective upon the adoption of a local constitutional amendment authorizing the Legislature to provide for the selection of the board of education of the City of Anniston.

The 1999 amendment validates and confirms "any local referendum conducted pursuant to . . . local law, . . . in which a majority of the qualified electors of the municipality voting voted in favor of an elected city board of education." 1999 Ala. Acts No. 99-408. Since there was not actually an election in which a majority of the qualified electors of the City of Anniston voted in favor of an elected city board of education, the 1999 amendment has no effect upon the countywide referendum election held in November of 1998 in Calhoun County, nor does it validate Act No. 98-284.

Your second question is whether Act 98-306 is validated or confirmed by the adoption of the 1999 constitutional amendment. The validity of Act No. 98-306 does not appear to be in question. It appears to be a valid act that was never implemented because the local constitutional amendment required to make it effective was not adopted. Validate means to give "legal strength or force, execute with proper formalities, make incapable of being rightfully overthrown or set aside." Black's Law Dictionary 1390 (5th ed. 1979). Confirm means "to complete or establish that which was imperfect or uncertain; to ratify what has been done without authority or insufficiently." Id. at 270. The 1999 amendment validates or confirms acts with flaws or defects but does not make acts effective. Accordingly, the 1999 amendment has no effect upon Act No. 98-306.

Amendment No. 659, proposed by Act No. 99-408 and proclaimed ratified by the Governor on November 22, 1999, has no effect upon Act Nos. 98-284 and 98-306 relating to the board of education of the City of Anniston.

QUESTION 3

In the event that your responses to the above questions are both in the negative, please advise as to whether, in your opinion, the Legislature may now have the authority to provide for the election of the Anniston School Board.

Amendment No. 659, as proposed by Act No. 99-408, authorizes the Legislature, by local law, to provide for the election of a city school board of education only after a majority of the qualified electors voting in a referendum election, as called pursuant to the amendment, vote in favor of an elected city school board. The Legislature may, by local law, provide for the referendum election or it may, by local law, authorize the municipal governing body to call for the referendum election by vote of the governing body.

Pursuant to Amendment No. 659, the Legislature may, by local law, authorize a referendum election for the City of Anniston to determine whether the voters favor an elected city board of education and, if so, the Legislature may, by local law, provide for the election of the city board of education.

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

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