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Unofficial Opinion 93-7

Unofficial Opinion 93-7

September 1, 1993
To: 

State Senator,

District 9

Re: 

Assuming the statute is enforceable, the qualifications for the office of State School Superintendent contained in O.C.G.A. § 20-2-31 should be read broadly, so that the requirement of three years' practical experience as a teacher could include three years' experience as a teacher in a school classroom even if the person has no teacher's certificate. Whether a particular candidate meets such qualification is a factual issue to be determined on a case by case basis.

You have asked for my unofficial opinion regarding an interpretation of O.C.G.A. § 20-2-31, which sets forth the qualifications for the office of State School Superintendent as follows:

To render a person eligible to hold the office of State School Superintendent, he or she shall be a person of good moral character, of high educational standing, have had at least three years' practical experience as a teacher, hold a five-year degree from an accredited college or university, and be at  [*2]  least 25 years of age.

You have asked how the phrase "practical experience as a teacher" should be defined.  It should be noted that the qualifications for State School Superintendent contained in O.C.G.A. § 20-3-31 are in addition to those contained in Article V, Section III, Paragraph II of the Georgia Constitution of 1983.

The difficulty in interpreting the phrase "practical experience as a teacher" is that the General Assembly has not defined the term "teacher" for purposes of O.C.G.A. § 20-2-31, although such term is defined and referred to elsewhere in Title 20.  For example, in the Professional Teaching Practices Act, O.C.G.A. § 20-2-790 et seq., the General Assembly declares teaching "to be a profession in this state" and to mean "any professional service rendered or performed by an educator [who is a person who holds a certificate issued by the Professional Standards Commission]." O.C.G.A. §§ 20-2-791, 792(2), and 792(8).  For purposes of health insurance, "teacher" means "any person employed not less than half time in a professionally certificated capacity or position in the public school systems of this state" or "any professionally certificated person who has acquired [*3]  ten years or more of credible service" and who is paid retirement benefits.  O.C.G.A. § 20-2-880(4).  For purposes of punitive action against a contracted employee, "teacher" is defined to mean "any professional school employee certificated by the Professional Standards Commission." O.C.G.A. § 20-2-942(a)(4).

It is significant that in other sections of the Code in which the term "teacher" is specifically defined, the General Assembly saw fit to refer to a certificated individual.  However, this was not done in O.C.G.A. § 20-2-31, where the reference is to "practical experience as a teacher." It is a basic tenet of statutory construction that the General Assembly is presumed to enact legislation with full knowledge of the existing conditions of the law and statutes are to be construed in connection and in harmony with existing law.  Poteat v. Butler, 231 Ga. 187, 188 (1973). If the General Assembly wanted to require that the State School Superintendent have a teaching certificate from the Professional Standards Commission, it could have done so.  See also Taylor v. Davis, 242 Ga. 528, 530 (1978).

It is also important to note that statutes dealing with qualifications  [*4]  for public office must be read broadly:

It is true that "[w]ords limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office, in order that the public may have the benefit of a choice from all of those who are in fact and in law qualified." [Citation omitted.] "A statute pleaded as a barrier to eligibility [to hold public office] will be strictly construed and strictly applied, . . ." [Citations omitted.] However, it does not follow that courts should give words an unreasonable construction in order to uphold the right of one to hold office." [Citation omitted.]

Griggers v. Moye, 246 Ga. 578, 580 (1980). It is also a fundamental rule of statutory construction that words in a statute should be given their common and ordinary meaning.  O.C.G.A. § 1-3-1(b); Board of Tax Assessors v. Catledge, 173 Ga. 656 (1931). The term "practical" is defined as "of, relating to, governed by, or acquired through practice or action, rather than theory, speculation, or ideals.  American Heritage Dictionary 972 (2d ed. 1985).

Given the ordinary and common meaning of the phrase "practical experience as a teacher" and the rule [*5]  that qualification for public office should be interpreted liberally, it seems reasonable to conclude that those who have the requisite teaching experience in a classroom setting, whether or not certificated by the State of Georgia, would fulfill the requirement contained in O.C.G.A. § 20-2-31.  See also 1989 Op. Att'y Gen. 89-21. It also should be noted that the ultimate determination of who is qualified to hold a particular public office is made by the public, with judicial determination available in an election contest proceeding.  See O.C.G.A. § 21-2-522(2).  If a candidate were challenged on the basis that he or she was not qualified to serve as State School Superintendent, the court would have to determine that factual issue in that particular case.

One final point should be made.  The constitutional provision setting forth the qualifications for certain state-wide elected officers, including the State School Superintendent, does not contain any qualification pertaining to three years' practical teaching experience. See Ga. Const. 1983, Art. V, Sec. III, Para. II(a).  In Lucas v. Woodward, 246 Ga. 770 (1978), the Georgia Supreme Court held that the General [*6]  Assembly cannot by statute impose a residency requirement as a condition of eligibility to hold county office which is more stringent than the requirement fixed by the Georgia Constitution.  In that decision, the Court stated as follows:

In White v. Clements, 39 Ga. 232, 265 (1869), the court wrote that ". . . if the Constitution prescribes a qualification for an officer, it by necessary implication denies to the Legislature the power to fix new and other qualifications." Where the Constitution has prescribed the qualifications which allow and prevent eligibility to a public office, the General Assembly cannot by statute add to or take away from those conditions of eligibility.

246 Ga. at 774-75. The above-quoted language from Lucas suggesting that the General Assembly may not add qualifications for office to those prescribed by the Constitution has been called into question by subsequent decisions.  See 1980 Op. Att'y Gen. U80-11.  Indeed, cases decided after Lucas have upheld statutes which contain qualifications for office which are consistent and not in conflict with other constitutional provisions. See Eaves v. Harris, 258 Ga. 1, 5-6 (1988) (statute  [*7]  providing for official's suspension from office after felony indictment not preempted by constitutional provision disqualifying those convicted of a felony); Griggers v. Moye, 246 Ga. 578, 580 (1980) (statute providing for residency requirement in county for two years' immediately preceding election not in conflict with constitutional provision mandating two years' county residency); Whitmer v. Thurman, 241 Ga. 569, 570-1 (1978) (statute providing that district attorney must have practiced law in the superior courts for three years consistent with three years' general practice requirement found in constitution).

Whether the requirement that a State School Superintendent have three years' practical experience as a teacher would be held to be consistent and not in conflict with the other qualifications contained in the State Constitution is unclear and a matter left to the courts.  See 1980 Op. Att'y Gen. U80-11.  Regardless of this situation, there would appear to be no requirement that a State School Superintendent be a certificated member of the teaching profession.

Therefore, it is my unofficial opinion that, assuming the statute is enforceable, the qualifications [*8]  for the office of State School Superintendent contained in O.C.G.A. § 20-2-31 should be read broadly, so that the requirement of three years' practical experience as a teacher could include three years' experience as a teacher in a school classroom even if the person has no teachers' certificate. Whether a particular candidate meets such qualification is a factual issue to be determined on a case by case basis.

This 1st day of September, 1993.


Prepared by:

MARK H. COHEN,

Senior Assistant Attorney General