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Unofficial Opinion 97-25

Unofficial Opinion 97-25

August 18, 1997
To: 

Representative
District 14

Re: 

Residency requirements for the election of local school board members cannot be established by board bylaws.

You have asked for my opinion on the validity of a two-year residency requirement for election to the Bartow County School Board established by board bylaws. It is my opinion that the residency requirement is invalid.

The Constitution of the State of Georgia provides that local school board members “shall reside within the territory embraced by the school system and shall have such compensation and additional qualifications as may be provided by law.” Ga. Const. 1983, Art. VIII, Sec. V, Para. II.

The General Assembly has provided in O.C.G.A. § 20-2-51 for additional qualifications for local school board members, including residence in the election district that the candidate seeks to represent. By local law, the General Assembly has provided that Bartow County School Board members be elected to represent militia districts and must reside in the appropriate militia district. 1987 Ga. Laws 4915, 4916. The durational residency requirement in general law is found at O.C.G.A. § 45-2-1(7), which establishes a twelve-month residency requirement for “any civil office.” The predecessor to this statute established a two-year durational residency requirement for “county officers” and a school board member was a county officer as a matter of law. 1976 Op. Att’y Gen. 76-85. See also Black v. Catoosa County School District, 213 Ga. App. 534, 535 (1994).

Therefore, by a statute of state-wide application, school board members must have resided within the jurisdiction for at least twelve months, but the Bartow School Board Bylaws require two years residency. Obviously, the Board bylaws and the state statute conflict. Were the bylaws a local act, the residency requirement therein would be invalid. 1984 Op. Att’y Gen. U84-31 (The provisions of the local act establishing a longer residency requirement than general law are unenforceable as being a local act in derogation of general law.). Similarly, were the one-year durational residency requirement in the constitution and the two-year requirement in a general statute of statewide application, the statute would be unenforceable. 1993 Op. Att’y Gen. U93-7. From the above authorities, the following general conclusion about durational residency can be drawn. A constitutional requirement prevails over a statutory requirement and a statutory provision of statewide application prevails over a local act unless the provisions can be read together. In this hierarchical scheme, the statute of statewide application prevails over a board bylaw.

In addition, the following rules of statutory construction apply to this issue of eligibility for public office. “’Words 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.”’ Griggers v. Moye, 246 Ga. 578, 580 (1980), quoting Gazan v. Heery, 183 Ga. 30 (4) (1936). "A statute pleaded as a barrier to eligibility [to hold public office] will be strictly construed and strictly applied . . . ." Avery v. Bower, 170 Ga. 202, 205 (1930); Morgan v. Crow, 183 Ga. 147, 148-49 (1936); Lucas v. Woodward, 240 Ga. 770 (1978). The General Assembly cannot by statute impose a residency requirement as a condition of eligibility to hold county office that is more stringent than the requirement fixed by the state constitution. Lucas v. Woodward, supra. See also 1993 Op. Att’y Gen. U93-7.

Further, it appears that boards of education lack the authority to promulgate policies that limit their members’ eligibility to hold office. Although local boards have broad authority to enact policy for the governance of schools and to organize their meetings, Powell v. Studstill, 264 Ga.109 (1994), neither the constitution nor the statutes provide authority to local boards to prescribe the qualifications for the office of school board member. For example, O.C.G.A. § 20- 2-57 provides:

Unless otherwise provided by local law or, in the absence of local law, by local board policy, upon being called together by one of their number, the members of the local board shall organize by selecting one of their number as chairperson to serve as such . . . .

However, that statute and others relating to school boards contain nothing to even imply that establishing qualifications for the office are included within the authority of the board. See also O.C.G.A. §§ 20-2-50 through 20-2-67. This result is consistent with the ruling that a municipality can not establish a residency requirement by ordinance under its home rule powers. See 1985 Op. Att’y Gen. 85-45.

In summary, it is my unofficial opinion that residency requirements for the election of local school board members cannot be established by board bylaws.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General