Alabama Advisory Opinions March 20, 2000: AGO 2000-109 (March 20, 2000)

Alabama Attorney General Opinions

2000.

AGO 2000-109.

Dear Mr. Ward:

This opinion of the Attorney General is issued in response to your request on behalf of the Tuscaloosa County Board of Education. QUESTIONS

1. Is Board Member Harbin deemed to have vacated his seat on the Board due to his move to a house that he mistakenly believed to be situated in District 3?

2. Is Board member Harbin prohibited from seeking reelection in District 3 due to his move to a residence that he mistakenly believed to be situated in District 3?

FACTS AND ANALYSIS

The following facts have been presented to this Office:

The Tuscaloosa County Board of Education is composed of seven members elected from single-member districts. Rick Harbin was elected to serve as the Board Member from District 3 and, at that time, he clearly resided in District 3. Mr. Harbin's position on the Board is up for election this year. Mr. Harbin owned a parcel of property on Lake Tuscaloosa and decided to build a home on the lakefront property. Prior to putting his home on the market he was advised by the Tuscaloosa County Board of Registrars that the lakefront property was located in District 3. After determining that the property was located in District 3, Mr. Harbin placed his existing home on the market. Approximately three years later, in June of 1998, the home was sold. Upon the sale of the home, Mr. Harbin and his family moved into a house located near the lakefront property, which was to be occupied until the new house was constructed on the lakefront property. The Board of Registrars advised Mr. Harbin that this house was also located in District 3. In mid-February of 2000 it was discovered that the lakefront property, and the house in which Mr. Harbin currently resides, are located just across the district line in District 2. Upon this discovery, Mr. Harbin began making arrangements to secure a residence within District 3 and is preparing to move into that residence.

Mr. Harbin states that he never intended to move from District 3, that he believed his temporary home and the new home to be built were located in District 3. He does not intend to build on the lakefront property, but intends to move back into a house in District 3.

A county school board member must be a resident of the district he represents and "residency shall have been established at least one year before the general election at which the candidate is to be elected." ALA. CODE § 16-8-1 (1995). Section 36-9-1 of the Code of Alabama provides:

Any office in this state is vacated:

* * *

(3) By the incumbent's ceasing to be a resident of the state or of the division, district, circuit or county for which he was elected or appointed.

ALA. CODE § 36-9-1 (1991).

The term "residency," when used in connection with political rights, is synonymous with "domicile." Harris v. McKenzie, 703 So. 2d 309 (Ala. 1997); Mitchell v. Kinney , 242 Ala. 196, 5 So.2d 788 (1942). To establish a domicile, an individual must establish residence with the intention to remain permanently or for an unlimited time. Osborn v. O'Barr , 401 So. 2d 773 (Ala. 1981). With respect to the residency of a voter, the Alabama Supreme Court has stated:

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.

Jacobs v. Ryals, 401 So. 2d 776, 778 (Ala. 1981) (quoting Wilkerson v. Lee , 236 Ala. 104, 181 So. 296 (1938).

It is the opinion of this Office, based upon the particular facts involved, that Mr. Harbin did not vacate his residence in District 3. Mr. Harbin moved to a new home after he was advised that the home was located in District 3; upon discovering that the home is not, in fact, located in District 3 he plans to move to a home that is located in District 3.

CONCLUSION

It is the opinion of this Office, based upon the facts involved, that Mr. Harbin did not vacate his residency in District 3 and that he is entitled to seek reelection in District 3.

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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