Alabama Advisory Opinions June 11, 1992: AGO 92-00315 (June 11, 1992)

Advisory Opinion Text

Honorable W. G. Campbell

Mayor, City of Haleyville

City Hall

Haleyville, AL 35565

Boards of Education - Elections - Municipal Elections

The City of Haleyville may elect school board members to succeed those elected under the terms of Act No. 90-395 at its regular municipal election. The successors will not take office until the terms of the incumbents expire in February of 1993.

Dear Mayor Campbell:

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

QUESTION

Can we hold the 1992 school board election concurrently with our municipal election of the mayor and council in August 1992, with the newly elected members taking office the day after the election, or must we hold a separate election in February of 1993 so that those elected last February will serve the length of term specified in the bill?

FACTS AND ANALYSIS

The Legislature passed Act No. 90-395 providing for the election of the members of the City of Haleyville Board of Education, and the Act was approved by the Governor on April 17, 1990. Pursuant to the approval of the Act by referendum vote, an election was held by the judge of probate in February of 1991, and the newly elected board members took office the day after the election. Under the terms of Act No. 90-395, the members of the board first elected shall hold terms of office for various specified periods of time; thereafter each elected board member shall hold office for six years:

"Act No. 90-395

"AN ACT

"Relating to the School District of Haleyville, Winston County, Alabama; providing for the election of the city board of education.

Be It Enacted by the Legislature of Alabama :

"... Members of the board first elected shall be elected for terms as follows: Place No. 1 shall be elected for a term of six years; Places No. 2 and 3 elected for four-year terms; and Places No. 4 and 5 for two-year terms. Thereafter all members shall be elected for six-year terms."

(Portions omitted. Emphasis in Act.)

These terms of office are statutorily fixed and cannot be changed absent legislative enactment.

The question posed by the City of Haleyville concerns the election of the successors in office for Places No. 4 and 5, wherein the incumbent board members were elected for two-year terms, but whose successors will be elected for six-year terms of office. The city would realize a significant financial benefit by holding the second school board election concurrently with its municipal election for mayor and city council members scheduled for August 1992. However, the terms of office of the incumbent board members elected to Places No. 4 and 5 in February 1991 do not expire until February 1993. Therefore, if the city board of education election were held concurrently with the municipal election, the newly elected board members could not take office the day after the election. The board members previously elected to two-year terms are statutorily authorized to hold their offices for the entire term specified by statute. See the Attorney General's opinion to Mayor A. Victor Guarisco, dated June 30, 1988, AG No. 88-00341. The incumbents are statutorily authorized to hold their offices for the entire term specified by Act No. 90-395.

While the manner in which the initial election of the school board is specified in Act No. 90-395, the Act does not mandate requirements for the election of the incumbent board's successors. While a special election could be held under the municipal elections laws codified in Code of Alabama 1975, § 11-46-21, there is nothing in either § 11-46-21 or Act No. 90-395 requiring a special election. If the municipal governing body so chooses, it may hold the elections for the successors of the incumbent school board members at the time of its regular election. However, because the terms of office of the incumbent school board members do not expire until February 1993, the newly elected officers would not assume their duties until the end of the incumbents' terms of office. In other words, the new school board members elected at the regular municipal election would not take office until February 1993 on the day the incumbents' terms of office expire.

CONCLUSION

The City of Haleyville may elect school board members to succeed those elected under the terms of Act No. 90-395 at its regular municipal election. The successors will not take office until the terms of the incumbents expire in February of 1993.

I hope this sufficiently answers your question. If our office can be of further assistance, please do not hesitate to contact us.

Sincerely,

JIMMY EVANS Attorney General

JAMES R. SOLOMON, JR. Chief, Opinions Division