You are here

Unofficial Opinion 93-11

Unofficial Opinion 93-11

October 22, 1993
To: 

Senator

Re: 

The duration of the contract of the Cobb County superintendent of schools is controlled by the applicable local constitutional amendment and not by a subsequent legislative enactment of the General Assembly.

You have asked my unofficial opinion as to what is the applicable law governing the duration of the contract of the superintendent of the Cobb County school system. It is my unofficial opinion that the duration of the contract of the superintendent is controlled by a previously adopted local constitutional amendment, and not by a subsequent enactment of the General Assembly.

In 1962, the General Assembly approved a local constitutional amendment which, under the Constitution of 1945, provided that:

The Board [of Education] shall appoint and employ a County School Superintendent for Cobb County who shall serve at the pleasure of the Board.  Provided, that no contract of employment shall extend for more than six months beyond the end of the term of office of the members [*2]  of the Board employing the Superintendent.

Ga. Laws 1962, pp. 971, 974.

The local amendment was approved by the appropriate voters and proclaimed as such by the Governor.  Ga. Laws 1963, pp. 3778, 3786.  The constitutional provision was continued by the General Assembly under the Constitution of 1983.  Ga. Laws 1986, pp. 4055-56.  See also Ga. Const. 1983, Appendix IV (Ga. Const. 1945, Art. VIII, Sec. V, Para. I continued.) This office has previously addressed how the duration of the superintendent's contract should be calculated, given subsequent enactments which changed the terms of office of Board members from concurrent to staggered four year terms.  See Op. Att'y Gen. U88-29.

During the 1993 session of the General Assembly, O.C.G.A. § 20-2-101(a) was amended to provide:

Superintendents of each school system shall be employed by the local board of education under written contracts for a term of not less than one year and not more than two years.  Those provisions of any local Act which authorize employment contracts with a school superintendent which are of a duration which exceeds that authorized by this subsection, which local Act became effective before, at [*3]  the time of, or after this subsection becomes effective, are repealed. Any contract entered into pursuant to the provisions of a local Act repealed by the terms of the preceding sentence of this subsection shall not be affected by such repeal for the duration of that contract as specified immediately before this subsection becomes effective as long as that contract was valid at such time.

The question has now arisen as to whether the local constitutional provision or the aforementioned statute determines the length of the superintendent's contract of employment.

Under Ga. Const. 1983, Art. XI, Sec. I, Para. IV, an amendment, such as the original local amendment here, could be continued in force and effect by action of the General Assembly prior to July 1, 1987.  As noted above, the General Assembly did so in 1986.  Ga. Laws 1986, p. 4057.  As such, the original local amendment became a part of the Georgia Constitution of 1983.

The Constitution also provides that the repeal of such local amendments shall be accomplished by a local act of the General Assembly, the effectiveness of which shall be conditioned on its approval by a majority of the qualified voters voting thereon [*4]  in each of the particular political subdivisions affected by the amendment.  Ga. Const. 1983, Art. XI, Sec.  I, Para. IV(b).  No such action to repeal the prior local amendment has been taken here and it continues on as a part of the state constitution.  This constitutional provision takes precedence over any subsequent statutory enactment of the General Assembly.

Therefore, it is my unofficial opinion that the duration of the contract of the Cobb County school superintendent is to be determined by the local constitutional amendment discussed above, as interpreted under Op. Att'y Gen. U88-29, and not by the 1993 amendment to O.C.G.A. § 20-2-101.

Issued this 22nd day of October, 1993.

Prepared by:

DENNIS R. DUNN

Senior Assistant Attorney General