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Unofficial Opinion 93-16

Unofficial Opinion 93-16

December 30, 1993
To: 

Representative

Re: 

A member of the Lee County Board of Education may hold over in office until his successor is elected and qualified in an upcoming election.

You have asked my unofficial opinion as to the effect of Ga. Const. 1983, Art. VIII, Sec. V, Para. II on a member of the Lee County Board of Education, where no successor for this office has yet been elected because of an election contest. It is my unofficial opinion that the member of the Board may hold over in office until his successor is elected and qualified.

The facts underlying your request are as follows.  The Lee County Board of Education is an appointed board which, pursuant to Ga. Const. 1983, Art. VIII, Sec. V, Para. II, is now transitioning to an elected board.  However, an election contest was filed in relation to the election of one board member and new elections are yet to be held, so that one seat on the board will not be filled by election by December 31, 1993.  The elections for this office are now presently set for January and February, 1994.

The particular provision of the Constitution which [*2]  is implicated here provides that:

Each school system shall be under the management and control of a board of education, the members of which shall be elected as provided by law. . .  Any board of education to which the members are appointed as of December 31, 1992, shall continue as an appointed board of education through December 31, 1993, and the appointed members of such board of education who are in office on December 31, 1992, shall continue in office as members of such appointed board until December 31, 1993, on which date the terms of office of all appointed members shall end.

Ga. Const. 1983, Art. VIII, Sec. V, Para. II.  The General Assembly has moved to implement this constitutional provision through a number of statutes, but no specific provisions have been made to address the circumstances facing the Lee County Board of Education now.  See O.C.G.A. § 20-2-51 et seq.

However, the General Assembly has provided as a part of the general laws of the State that:

All officers of this state shall reside in this state at such places as are designated by law and shall discharge the duties of their offices until the successors are commissioned and qualified. . .  [*3]

O.C.G.A. § 45-2-4 (Emphasis added).  This office has previously opined that this statute is applicable to members of local boards of education.  Op. Att'y Gen. 75-15 ("As local board members are public officers, their terms shall also continue until their successors are commissioned." [Citations omitted]).

That opinion is based upon, and consistent with, a series of opinions of the Supreme Court of Georgia.  See, e.g., Clarke v. Long, 152 Ga. 619 (1922); Stephenson v. Powell, 169 Ga. 406 (1929); Kidd v. Nelson, 213 Ga. 417 (1957). Most recently the Supreme Court has addressed the issue of an incumbent holding over in office in the case of Garcia v. Miller, 261 Ga. 531 (1991). In Garcia the Court held, in interpreting Ga. Const. 1983, Art. VI, Sec. III, Para. I in the context of whether superior court judges could continue to hold over in office after the expiration of their terms and before elections could be held:

All officers of this state, except public officers appointed by the Governor and confirmed by the Senate, "shall discharge the duties of their offices until the successors are commissioned and qualified." O.C.G.A. § 45-2-4.  "[I]t is better [*4]  for society that the act de facto stand than that the business of society . . . be all wrecked, because parties did not know that the term of office of the public official expired the day before." Smith & Bondurant v. Meador, 74 Ga. 416, 419 (1885). An office is not vacant so long as it is filled by "'an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it.'" Pittman [v. Ingram], 184 Ga. [255] at 257 [1937] (quoting Shackelford v. West, 138 Ga. 159 [1912])."

Garcia at 532.

Recognized in the Supreme Court's opinion is the strong public policy that an office should not go vacant to the detriment of conducting public business.  Last year, in relation to the constitutional amendment in question, the Attorney General addressed the public policy reasons behind providing a transitionary period for the implementing of this amendment:

The policy reason for allowing the veteran board members to complete the transition to elected boards could well be to avoid the "sweeping away of the total [school board] but rather [have] an orderly transition which protects the tenure of previously . . . appointed officials . . . and [*5]  assure the City that experienced and qualified personnel continue in office during such transition period." Jackson v. Inman, 232 Ga. 566, 578 (1974) (Nichols dissenting).

Op. Att'y Gen. 92-34.  This recognizes the sound public policy reasons for permitting the incumbent member of a local school board to continue in office pending the transition to a completely elected board.

Therefore, it is my unofficial opinion that a member of the Lee County Board of Education may hold over in office until his successor is elected and qualified.

Prepared by:

DENNIS R. DUNN,

Senior Assistant Attorney General