Alabama Advisory Opinions August 14, 2000: AGO 2000-209 (August 14, 2000)

AGO 2000-209.

Dear Senator Dial:

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

If a superintendent of education elected in 1996 took office on July 1, 1997, when does his or her term end and the newly elected superintendent's term begin?

According to your opinion request, the facts upon which your question is based are as follows:

A county superintendent of education was elected in November 1996 and took office on July 1, 1997, for a four-year term. Act No. [97-630] passed in [1997] said every superintendent that takes office after this act shall take office in January after their election in November.

After submitting your request, you submitted a copy of a December 8, 1998, letter from the Office of General Counsel of the Alabama Department of Education addressed to a county superintendent of education regarding this issue. In the letter, the General Counsel stated:

[Y]ou advised our office that you were provided conflicting information on your term of office. It is the opinion of this office that your term of office will expire on July 1, 2001. This opinion is based upon information provided to me by you that you were elected in November 1996, and assumed office in July 1997. You further advised me that the next election cycle will be in the year 2000. This opinion is governed by Code of Alabama 1975, §16-9-8, which provides for the following:

(a) In counties in which the county superintendent of education is elected by popular vote, the successful candidate shall take office on January 1 following the date of election. In the event the successful candidate dies or resigns prior to January 1 following the date of election, a successor shall be elected at a special election held for that purpose set upon proclamation of the Governor. County party committees may call primary elections to be held in accordance with Chapter 7 of Title 17, to determine party candidates at the special election. In the event one candidate at the election does not receive a majority of all votes cast at the election, there shall be held a run-off election three weeks after the date of the first election between the two candidates who received the highest number of votes. The incumbent shall continue to hold office until a successor is elected and qualified.

(b) An elected county superintendent of education holding office on May 27, 1997, shall continue to serve the remainder of his or her term. If an elected county superintendent of education resigns or dies in office, his or her successor shall serve only until January 1 following the election of a successor. This section shall apply to the term of any county superintendent of education elected after May 27, 1997.

As you were elected in November 1996, the former provisions of §16-9-8 apply to your term of office. The former provision clearly stated that newly elected superintendents would assume office on July 1 following the date of election. Accordingly, as you were elected superintendent . . . in November 1996, your successor, if any, would assume office on July 1, 2001, following the election for superintendent . . . in November 2000.

"The fundamental rule to be applied in construing any statute is . . . to ascertain and effectuate the legislative intent as expressed in the statute. This intent may be discerned from the language used, the reason and necessity for the act, and the goal sought to be obtained." Gholston v. State , 620 So. 2d 719, 721 (Ala. 1993). After reviewing section 16-9-8 and the Act that amended it in 1997, this Office agrees with the analysis of the Office of General Counsel of the Department of Education as a correct interpretation of the Legislature's intent in amending section 16-9-8.

Prior to 1997, section 16-9-8 provided that an elected county superintendent of education was to take office "on the July 1 following the date of his election." ALA. CODE § 16-9-8 (1995) (amended 1997). In 1997, the Legislature amended section 16-9-8 with the passage of Act No. 97-630. 1997 Ala. Acts No. 97-630, 1144. Act No. 97-630 changed the date on which an elected superintendent would take office from July 1 to "January 1 following the date of election." ALA. CODE § 16-9-8(a) (Supp. 1999). In addition to other minor changes, the Act also added subsection (b) to section 16-9-8. Subsection (b) deals with the applicability of the amended section 16-9-8 and essentially serves as a transition provision.

The first sentence of section 16-9-8(b) provides: "An elected county superintendent of education holding office on May 27, 1997, shall continue to serve the remainder of his or her term." ALA. CODE § 16-9-8(b). This sentence is not applicable, however, to a superintendent in the situation you describe, who was elected in 1996 but did not take office until July 1, 1997. It is inapplicable because a superintendent in that situation was not "holding office on May 27, 1997."

As the General Counsel indicated, however, the third sentence of section 16-9-8(b) resolves your question. It provides: "This section shall apply to the term of any county superintendent of education elected after May 27, 1997 ." ALA. CODE § 16-9-8(b) (emphasis added). The 1997 Act amending section 16-9-8 stated: "This act shall apply to the term of any county superintendent of education elected after the effective date of this act." Act No. 97-630, sec. 1, at 1145 (emphasis added). The original language of Act No. 97-630 clarifies that the entire amended section 16-9-8 (not just subsection (b)) would apply only to county superintendents elected after May 27, 1997. Because the superintendent in your question was elected in 1996, the 1997 amendment to section 16-9-8 does not apply to him or her. That superintendent's term is governed by former section 16-9-8, which provided that a successor would take office on July 1 following the election.

Refusing to apply the January 1 date to the superintendent elected in 1996 means that January 1, 2001, cannot be the date on which his or her successor, who will be elected in November 2000, takes office. The successor will have to wait until July 1, 2001, to take office. His or her term will still end on January 1, 2005, however, because the amended section 16-9-8 will apply to whoever is elected in November 2000. Accordingly, a successor elected in 2000 (or the same superintendent elected in 1996, if reelected in 2000) will then have a term of office from July 1, 2001, until January 1, 2005.

This obviously means that the successor elected in November 2000 will have a shortened term of office. We believe that section 16-9-8(b) reveals an intent on the part of the Legislature to allow such a result, however, because that is clearly what the Legislature intended for a superintendent holding office on May 27, 1997. Such a superintendent serves out his or her full term unless he or she dies or resigns. In the event of death or resignation, the successor's term is truncated to January 1 following the election. If the superintendent does not die or resign, the elected successor (or the same superintendent, if reelected) then serves a shortened term to January 1 following the next election.

In short, it appears that the Legislature intended to preserve the term of any superintendent elected under former section 16-9-8 so as not to upset the expected term of office established under prior law. It instead provided for the future term of a successor to be truncated as a means of converting to the January 1 date. By doing this, anyone running for the office of superintendent after May 27, 1997, would be on notice of the shortened term when he or she decided to run for office.

If a superintendent of education elected in 1996 took office on July 1, 1997, his or her term ends and the newly elected superintendent's term begins on July 1, 2001. The newly elected superintendent's term ends on January 1, 2005. ALA. CODE § 16-9-8 (Supp. 1999).

I hope this opinion answers your question. If this Office can be of further assistance, please contact Charles B. Campbell of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

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