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Unofficial Opinion 99-8

Unofficial Opinion 99-8

October 22, 1999
To: 

Representative
District 41

Re: 

Where a vacancy is created by the prospective resignation of a member of a local board of education, the board may move to fill that vacancy prior to the effective date of the resignation.

You have asked whether a local board of education, upon receiving and accepting the prospective resignation of one of its members, may act to fill that vacancy prior to its effective date. It is my opinion that where a vacancy is created by the prospective resignation of a member of a local board of education, the board may move to fill that vacancy prior to the effective date of the resignation. However, the potential appointee may not enter upon any of the duties or responsibilities of the office until it is lawfully assumed.

The underlying facts involving your request appear to be as follows. A member of the Fulton County Board of Education submitted her resignation to the Board on August 27, 1999. The Board voted to accept this resignation effective at midnight on December 31, 1999. Notice of the resignation was provided to the Governor pursuant to O.C.G.A. § 45-5-5(a) and to the State School Superintendent and the Secretary of State pursuant to O.C.G.A. § 20-2-53. Therefore it appears that all of the statutory requirements were met regarding the submission and acceptance of a resignation for a member of the Board.

Georgia law provides that an office shall be vacated by resignation, when accepted. O.C.G.A. § 45-5-1(a)(2). Once that resignation is accepted, even if the effective date of the resignation is in the future, it is final and cannot be withdrawn. See Henry County Bd. of Registrars v. Farmer, 213 Ga. App. 522, 523 (1994); Bulloch Academy v. Cornett, 184 Ga. App. 42 (1987); Allen v. Lankford, 170 Ga. App. 605 (1984). See also 1998 Op. Att’y Gen. 98-6. As such, with the offer and acceptance of the resignation in this matter, the incumbent’s office has become vacant as a matter of law. This is so, notwithstanding the fact that the incumbent will continue to lawfully, physically occupy the office and exercise its duties and responsibilities until midnight on December 31, 1999. See, e.g., Carey Canada, Inc. v. Hinely, 181 Ga. App. 364, 365(1) (1986) (state court judge continued to lawfully serve in that position until the effective date of his resignation).

The General Assembly has made specific provisions for the filling of vacancies on the Fulton County Board of Education. 1984 Ga. Laws 3591, 3597 § 3(b)(1), (2).

If the vacancy occurs during the first 20 months of a term of office, the vacancy shall be filled for the unexpired term of office by the election of a successor at a nonpartisan special election in the education district wherein the vacancy occurred. . . . The remaining members of the board shall appoint a qualified resident of the education district wherein the vacancy exists to fill such vacancy until it is filled by election as provided in this paragraph. . . . If the vacancy occurs during the last 28 months of a term of office, the remaining members of the board shall appoint a qualified resident of the education district wherein the vacancy occurred to serve for the remainder of the unexpired term.

Id. It appears from information provided to this office that the resignation was submitted during the first 20 months of the incumbent’s term so that any appointee of the board will serve until the office is filled by a special election.

Given that the resignation has created a vacancy as a matter of law and that the Board has the authority to fill that vacancy, your question now focuses on the time frame in which the Board may exercise its power of appointment. This office has previously recognized that:

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. The reason for the rule is that the appointment otherwise would usurp the prerogatives of the appointor’s successor or successors. The rule may be changed by legislation, but such legislation, being a change to the common law, must be read narrowly, and the legislative intent to allow an appointment which takes effect after the appointor leaves office must be clear.

1995 Op. Att’y Gen. U95-18, p. 171 (citations omitted). That opinion was issued in the context of an inquiry as to whether a local board of education could contract for the services of a school superintendent, where the contract of employment would begin at a future point in time. Id. The opinion concluded that such an agreement could be undertaken, provided that a majority of the appointing or employing board would be in office on the effective date of the agreement. Id. This requirement that a majority of the board be able to approve the commitment both at the time of the initial appointment and at the time of the effective date of the appointment prevented a violation of the general rule against improperly binding a public officer’s successor in office. Id.

Applying these same principles to your question, it appears that the Fulton County Board of Education may exercise its powers of appointment to fill a vacancy occurring by virtue of a prospective resignation, provided that a majority of the current Board will be in office at the time the prospective appointment takes effect. There is no statutory authority that would permit the Board to exercise this authority should a majority of the existing Board not be in office on the effective date of the resignation. The efforts of the Board may include identifying a candidate for the office such as advertising the vacancy in newspapers and schools, meeting with members of the public, accepting applications for the position, verifying the district residency of the applicants and interviewing those applicants. Additionally, in accordance with the restrictions outlined above, the Board could also identify and prospectively appoint a person to fill the upcoming vacancy on the Board.

I note that a person appointed to the Board under these circumstances could not actually enter into the office without taking the oath of office. O.C.G.A. § 45-3-1, -9. To do so, would subject the appointee to criminal prosecution. Given that there can only be one holder of each public office, the incumbent is the current occupant of that office and the only one who can properly exercise its powers and responsibilities. It would be appropriate for the prospective appointee to take the oath of office and to enter into the office only after the effective date of the incumbent’s resignation. These restrictions should not, however, be read to prevent a prospective appointee from undertaking efforts to learn how the particular office or the Board operates or to familiarize themselves with the issues before the Board. Those preparatory actions are not the same as actually assuming the office and exercising its powers and authorities.

In reaching these conclusions, I am mindful that the Supreme Court of Georgia has noted that the constitutional or legal power to fill a vacancy rests upon “the fact of an actual vacancy” and not merely upon the determination by the appointing authority that a vacancy exists. Patten v. Miller, 190 Ga. 123, 142 (1940). In Patten, the court recognized that “the jurisdiction to appoint does not come into play until a vacancy does actually exist from one or more of the causes declared by law.” Id. at 144. Here, the prospective resignation of the incumbent does, as a matter of law, create such an “actual vacancy” as described in Patten. As noted above, under Georgia law the offer and acceptance of the resignation of this incumbent, even with a prospective effective date, created a vacancy. O.C.G.A. § 45-5-1(a)(2). The accepted resignation is binding on the incumbent and the Board and may not be withdrawn, thus creating an actual vacancy and permitting the exercise of the powers of appointment.

Therefore, it is my opinion that where a vacancy is created by the prospective resignation of a member of a local board of education, the board may move to fill that vacancy prior to the effective date of the resignation. However, any potential appointee may not enter upon any of the duties or responsibilities of the office until it is lawfully assumed.

Prepared by:

DENNIS R. DUNN
Deputy Attorney General