Alabama Advisory Opinions November 04, 1987: AGO 88-00044 (November 04, 1987)

Advisory Opinion Text

Honorable Chip Bailey

Member, Alabama Senate

District No. 29

P. O. Box 6791

Dothan, Alabama 36302

Municipalities - Elections -Terms of Office

If electors in city of Dothan adopted mayor-council form of government, elections are to be held in 1988 and those officials elected at that time should take office on October 3, 1988.

Dear Senator Bailey:

Your opinion request relates to the provisions of Act 87-102 as they relate to the City of Dothan. Section 2 of Act 87-102 provides that the mayor or chief executive officer of any city to which Act 87-102 applies may call a special election to be held in 1987 for the purpose of determining whether such city shall adopt the mayor-council form of government. Section 6 of Act 87-102 states:

"An election shall be held in 1988 at the regularly scheduled municipal election and the officials elected shall take office upon the expiration of the present official's term of office. Five council members to be elected by districts and a mayor to be elected at-large shall be elected and the expense thereof shall be paid by the municipality."

The City of Dothan currently operates under a commission form of government pursuant to the provisions of Act 79-537. Act 79-537 does not appear to contain any provisions relating to abandonment of the commission form of government. It does provide for the election of commissioners for staggered terms.

With regard to Act 87-102, your request states the following:

"The purpose of this act is to provide a means to permit class 5 cities to install single member voting districts. This act applies to all class 5 municipalities, however, it is unclear how this act would apply to the City of Dothan whose elected officials are on staggered terms. Regularly scheduled elections for municipalities holding elections next year will be on August 23, 1988 and September 13, 1988. October 3, 1988 is the date for taking office. It would appear that should voters approve a change of government by referendum in 1987 as stipulated in H. B. 358, that this new form of government would take affect on October 3, 1988. This would appear to terminate all current officials, including those whose terms of office had not expired, as of 12 o'clock midnight on October 2, 1988."

Your question is:

"The question is as follows: How should H. B. 358 be applied to the City of Dothan, and should the voters of Dothan adopt by referendum the form of government called for in this legislative act, would the terms of office of the new officials '5 council members and mayor commence on October 3, 1988?"

Section 2 of Act 87-102 provides for calling of a referendum. If, by a majority vote, the mayor-council form of government is adopted, Section 6 becomes operable. The only provision contained in either Act 79-537 or Act 87-102 relating to the effective date of the new form of government and thus the beginning of the terms of the mayor and council is in Section 6 of Act 87-102 which provides that the officials elected in 1988 at the regularly scheduled municipal election "shall take office upon the expiration of the present official's term of office." Under Act 79-537 it appears that the terms of three commissioners expire in 1991 and the terms of the mayor and the other commissioner expire in 1989.

Act 87-102 clearly states that the election of the new officials is to take place in 1988. It is, therefore, the opinion of this office that the only possible interpretation of Section 6 of Act 87-102 which does not violate public policy is that any existing terms of office under the commission form of government "expire" upon the adoption of a new form of government and the election of the officials to serve under that form of government, rather than a date calculated under the provisions of Act 79-537. It is the further opinion of this office that if, by majority vote, the type of mayor-council form of government provided for in Act 87-102 is adopted for the City of Dothan, the terms of office of the officials elected in 1988 would begin October 3, 1988, in conformity with general municipal law. However, there is a strong argument to be made that Act 87-102, as presently written, cannot be applied to the City of Dothan. Of course, should the city of Dothan wish to do so, it could seek to have the legislature amend Act 87-102 to provide authority for a delay in the effective date of implementation for some cities, could seek its own legislative enactment or could file a petition for declaratory judgment in a court of competent jurisdiction.

It should be noted that although Act 87-102 has been submitted to the United states Department of Justice for pre-clearance, but has not as of this date, received preclearance. We are also aware of and make note of litigation pending in the United States District Court for the Middle District of Alabama often referred to as the Dillard case which might or might not have an impact upon the nature of elections within the City of Dothan.

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

Sincerely yours,

DON SIEGELMAN, Attorney General.

CAROL JEAN SMITH, Assistant Attorney General.