You are here

Unofficial Opinion 95-18

Unofficial Opinion 95-18

August 31, 1995
To: 

Senator
District 23

Re: 

In the absence of clear legislative authority, a local school board may not appoint a new school superintendent for a term beginning after the terms of a majority of the current board expire.

You have asked whether the present Board of Education of Columbia County may appoint a new school superintendent for a term beginning on January 1, 1997, when the terms of a majority of the Board and of the current (elected) superintendent will expire on December 31, 1996.

As a general rule, an appointing power may fill an office prospectively if a vacancy will arise during the term of the appointing power, but an appointing power may not fill an office if the vacancy will arise after the appointing power's own term has ended. See Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 133 (1890). The reason for the rule is that the appointment otherwise would usurp the prerogatives of the appointor's successor or successors. Id. The rule may be changed by legislation, but such legislation, being a change to the common law, must be read narrowly, and legislative intent to allow an appointment which takes effect after the appointor leaves office must be clear. See id.; People v. Dethloff, 28 N.E.2d 850, 851-52 (N.Y. 1940). But see McRae v. State ex rel. Hyche, 112 So.2d 487 (Ala. 1959). (Cases on prospective appointments are collected at 67 C.J.S. Officers § 40 nn.39, 40 (1978); 63A Am. Jur. 2d Public Officers and Employees § 105 (1984); 75 A.L.R.2d 1277.)

While there is no Georgia authority directly in point, it is likely that this is the law in Georgia. See Brown v. City of East Point, 246 Ga. 144 (1980) (applying the rule against binding successors in office to a fiscal and personnel matter); Smith v. Ouzts, 214 Ga. 144 (1958) and 1988 Op. Att'y Gen. U88-29 (extending the rule against binding successors in office to local school boards); Roan v. Rogers, 201 Ga. 696, 704 (1946) (finding no requirement of prospective appointment to a fixed term vacancy in issue because officers in Georgia hold over until a successor takes office); Aven v. Steiner Cancer Hosp., Inc., 189 Ga. 126, 140 (1939) (rule against binding successors arises in common law); Zechmann v. Thigpen, 210 Ga. App. 726, 727 (1993) (statutes in derogation of common law must be narrowly construed).

In 1993 the General Assembly enacted O.C.G.A. § 20-1-101(a), which provides, in relevant part: "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 three years."

This language must be read to allow local school boards to bind their successors in office to the extent that a valid appointment for a term beginning during the term of the incumbent board carries over. This is necessarily so because that Section establishes a minimum term of one year, and a vacancy may arise less than one year before the terms of a majority of the incumbent board expire.

However, O.C.G.A. § 20-2-101(a) does not expressly state or necessarily imply that a school board may anticipate a vacancy which will arise during the term of a new board. It does further provide: "Where a vacancy occurs in the office of any elected superintendent . . . on or after January 1, 1993, the local board shall appoint and employ a successor in accordance with this Code section." O.C.G.A. § 20-2-101(e).

This language may be read to mean that an appointment may not be made until a vacancy arises, or it may be read only to say that as soon as the grandfathered terms of elected superintendents end (see O.C.G.A. § 20-2-102(d)), the provision for appointment takes over. Whichever the case, neither this language nor other language expressly or necessarily authorizes an appointment which will not commence until after the term of a current majority.

As I have indicated, anticipatory appointments are generally valid if they are to commence within the term of the appointing body. Under the reasoning of at least one case in another state, an appointment is, therefore, valid if a majority of the incumbent board is re-elected; that is, the re-elected majority may not change its mind. See State ex rel. Koch v. Lexcen, 308 P.2d 974 (Mont. 1957). Whether this is the general rule is questionable, although the cases cited at 75 ALR2d 1277, 1293 et seq. are not as conclusively to the contrary as stated. See, e.g., State ex rel. Russell v. Richardson, 152 So. 748, 750-51 (La. 1934) (prerogative of newly constituted board preserved but dictum hints at power to anticipate a vacancy a "reasonable" time in advance). In Georgia, in the area of conflicts of interest, each member of a public body is considered to be under a duty to contribute to all deliberations of the body. See 1978 Op. Att'y Gen. U78-18. Thus, if the exception applies at all, it may apply only if all board members are re-elected or (less likely) a majority is re-elected.

Therefore, in the absence of clear legislative authority, it is my unofficial opinion that a local school board may not appoint a new school superintendent for a term beginning after the terms of a majority of the current board expire.

Prepared by:

JOHN B. BALLARD, JR.
Senior Assistant Attorney General