February 2, 2017
Opinion No. 2017-19
Summary:
Education, Boards of ? Schools ? Municipalities ? Residency Requirements
The Legislature has not authorized the City of Leeds to adopt an ordinance requiring the appointment of city board of education members from districts corresponding to the city?s council districts.
A city council authorized by Alabama law to appoint members of a city school board would not be bound by policies adopted by the board that purport to set requirements for being appointed to and serving on the board to the extent those policies conflict with an act of the Legislature.
Dear Mayor Miller:
This opinion of the Attorney General is issued in response to your request on behalf of the City of Leeds.
QUESTIONS
(1) Does the Leeds City Council possess the legal authority to mandate that future members of the city?s board of education be appointed as a representative of a particular district with geographic boundaries that coincide with the five city council district boundaries?
(2) If so, does the council possess the legal authority to deny board appointments to citizen applicants, who live outside of a council district wherein a board vacancy is being filled, based solely on that citizen?s residence not being located in the correct district?
(3) Is the council bound by policies implemented by the board which seek to govern and implement rules regarding the membership status and the residency requirements of board members?
FACTS AND ANALYSIS
In 2001, the City of Leeds established a public school system and a board of education vested with the general administration and supervision of the public schools located in the city.? The first city board of education was composed of members appointed by the city council from each of the five city council districts.? Through the years, the appointment of replacement board members has resulted in some of the council districts not being represented on the board by a resident that resides in that particular district. The city is considering the adoption of an ordinance that would require all future appointments be from each respective district with the intent to appoint one board member for each of the five existing districts.
?Municipal corporations may from time to time adopt ordinances and resolutions not inconsistent with the laws of the state to carry into effect or discharge the powers and duties conferred by . . . applicable provisions of law.? Ala Code ? 11-45-1 (1975).? Therefore, ?[a] municipality may exercise those powers that are explicitly granted to it by the Legislature, as well as those powers that are necessarily implied from an express grant of power.? Bandy v. City of Birmingham, 73 So. 3d 1233, 1243 (Ala. 2011), citing Spear v. Ward, 199 Ala. 105, 105?06, 74 So. 27, 27?28 (1917).? ?The source of a city council?s authority is not found in the ordinances enacted by the city council. Rather, the source of a city council?s authority is the authority that the Alabama Legislature granted it by statute.? Scott v. Coachman, 73 So. 3d 607, 610 (Ala. 2011).
With regard to the council?s authority to appoint school board members, state law provides that ?[a]nnually at the regular meeting[] of the city council . . .? the council . . . shall elect a member or members of the board of education to succeed those whose term or terms of office expire that year.? Ala. Code ? 16-11-3 (1975).? A city board of education is ?to be composed of five members who shall be residents of the city, and who shall not be members of the city council or commission. . . .? Ala. Code ? 16-11-2(b) (1975) (emphasis added).? In addition, state law provides the following:
[t]he governing body of any Class 5 municipality may, by resolution, provide for the appointment of the city board of education members from districts corresponding to the city governing body districts and the appointment of one member from the city at-large by the mayor, only upon the expiration of each city board of education member?s current term.Ala. Code ? 16-11-3.1 (1975). ?The law further provides that ?[t]he provisions of this chapter shall apply to city boards of education unless otherwise provided by local law pursuant to Amendment 659 to the Constitution of Alabama of 1901, or any other provision of the Constitution of Alabama of 1901.? Ala. Code ? 16-11-2(a) (emphasis added)
The Legislature has expressly granted Class 5 municipalities the option to deviate from the general requirements governing appointments to a city school board and to appoint school board members from districts corresponding to the city governing body districts. Ala. Code ? 16-11-3.1 (1975). However, the Legislature has chosen not to extend that option to other classes of municipalities.? Likewise, the Legislature has not provided the City of Leeds that option by the passage of a local law or constitutional amendment.
If the Legislature had intended to provide the City of Leeds, which is not a Class 5 municipality, the option of appointing city school board members from districts corresponding to city council districts, it could have done so, but chose not to.? Therefore, the city is not authorized to adopt an ordinance providing for the appointment of city board of education members from districts corresponding to the city?s council districts. See e.g., Davis Plumbing Co. v. Burns, 967 So. 2d 94, 99 (Ala. Civ. App. 2007), citing Ex parte Jackson, 614 So. 2d 405, 407 (Ala.1993) (stating that the Legislature knows how to draft a statute to reach a particular end and that ?[t]he judiciary will not add that which the Legislature chose to omit?); Ex parte Oswalt, 686 So. 2d 368, 373 (Ala.1996) (Under the principle of expressio unius? est exclusio alterius, ?the expression of one thing implies an intent to exclude another not so expressed.?). ?In light of the answer to your first question, your second question is moot.
Regarding your final question, a similar analysis applies to policies adopted by a city board of education that purport to set requirements for being appointed to and serving on a city school board.? Since the Legislature itself has set forth rules governing who may sit on a city school board and what residency requirements the board members must meet, a city council authorized by Alabama law to appoint members of a city school board would not be bound by such policies to the extent those policies conflict with an act of the Legislature. Stephenson v. Lawrence Cty. Bd. of Educ., 782 So. 2d 192 (Ala. 2000) (holding that an act of the Legislature prevails over a policy of a school board where a conflict exists, and that a school board can never have the discretion to promulgate a policy that is contrary to law).? Any questions that arise regarding either a resident?s eligibility to be appointed to serve on the city school board or a board member?s eligibility to continue to serve as a member of the board would therefore ultimately be decided based on statutory requirements.
CONCLUSION
The Legislature has not authorized the City of Leeds to adopt an ordinance requiring the appointment of city board of education members from districts corresponding to the city?s council districts.
A city council authorized by Alabama law to appoint members of a city school board would not be bound by policies adopted by the board that purport to set requirements for being appointed to and serving on the board to the extent those policies conflict with an act of the Legislature.
I hope this opinion answers your questions.? If this Office can be of further assistance, please contact Juliana Dean, Legal Counsel, Alabama Department of Education.
Sincerely,
LUTHER STRANGE
Attorney General
By:
WARD BEESON, III
Chief, Opinions Section
LS/JTD/as
2233652/193371